State officials cite costs, complications of initiative
State agency officials attempted to predict the impacts to the state of a pending fish habitat ballot measure during a July 20 Senate State Affairs Committee hearing.
Ballot Measure 1, known as the “Yes for Salmon” initiative, would bolster the Department of Fish and Game’s statutory requirements for approving development activity permits in anadromous fish habitat areas as well as the department’s authority to enforce the stipulations of those permits.
Championed by the Anchorage-based nonprofit Stand for Salmon, the initiative is scheduled to be on the general election ballot in November depending on the outcome of an Alaska Supreme Court ruling to determine its constitutionality. Gov. Bill Walker’s administration has argued that the measure is an unconstitutional usurpation of the Legislature’s authority to appropriate resources.
The court is expected to rule on the constitutional question by early September to provide the Division of Elections time to prepare accurate materials for voters.
On a high level Ballot Measure 1 would establish two tiers of permit application reviews.
“Minor” habitat permits could be issued quickly and generally for projects deemed to have an insignificant impact on salmon waters.
“Major” permits for larger projects such as mines, dams and anything determined to potentially have a significant impact on salmon-bearing waters would require the project sponsor to prove the project would not damage salmon habitat.
Additionally, the project sponsor would have to prove that impacted waters are not salmon habitat during any stage of the fish life cycle if the waters are connected to proven salmon habitat in any way but not yet listed in the state’s Anadromous Waters Catalog.
The initiative also states that mitigation measures to offset the impact at the development site may not be done by enhancing or preserving habitat on other waters, which is a practice allowed now and is what’s proposed for the Donlin mine project.
On one level, Ballot Measure 1 would cost the state about $3 million per year in the near term to implement its changes, according to estimates in an Office of Management and Budget report.
Not surprisingly, much of that would be in Fish and Game’s budget for developing updated regulations and guidance documents. ADFG Commissioner Sam Cotten said it would likely cost the department $1.3 million per year over five years to implement the law changes.
The Department of Transportation, which is one of the most frequent applicants for fish habitat permits, would need another roughly $950,000 per year to comply with the more stringent fish habitat requirements, according to department leaders.
The departments of Environmental Conservation and Law would each need up to an additional $450,000 per year to possibly broaden water quality standards currently required for discharges in fish spawning areas and enforcing new civil penalties for violating fish habitat permit terms.
DOT Environmental Program Manager Ben White said the department would need to add a handful of hydrologists and hydraulic engineers to its current environmental permitting team.
“We are committed to environmental stewardship as a department and really work very hard, in this particular instance, to support healthy salmon populations,” DOT Commissioner Marc Luiken said to the committee.
While projecting fiscal impacts is an exercise agency staff are accustomed to — it is done for the majority of proposed legislation — the Republicans on the committee in opposition to the initiative posed increasingly speculative scenarios they are concerned about the initiative impacting while questioning administration officials.
Walker, who is running for reelection, has expressed his opposition to Ballot Measure 1 as a policy while the Department of Law is challenging its constitutionality.
At the same time, Civil Law Division Director Joanne Grace said the Department of Law has advised Walker’s commissioner’s to remain objective on the initiative.
Emily Anderson, an attorney for Stand for Salmon, said the discussion in the hearing was premature because agency officials were asked to outline the impacts of the potential law change before the Supreme Court, which could also amend the initiative, has made its decision.
Rather than wholly approving or rejecting the initiative, the Supreme Court could strike specific provisions of the proposal it feels are unconstitutional and allow the remainder of it to appear on the ballot if the general intent of the sponsors remains intact.
Sen. John Coghill, R-Fairbanks, asked if language in the initiative that would extend fish habitat permit reviews into the riparian area near the shoreline of a water body could be used to preclude development in entire floodplains, such as the one his hometown is built on.
Sen. Cathy Giessel, R-Anchorage, questioned whether fire departments could be prevented from filling their tanker trucks from salmon streams and if DOT would not be allowed to use rip-rap when dealing with emergency flood and erosion situations that can occur, particularly along Alaska’s large glacial rivers.
Agency officials largely obliged the speculation, acknowledging there is a possibility the circumstances raised could be impacted because of the vague language of the initiative.
DOT’s White said the agency could be forced to find alternatives to traditional rock rip-rap for erosion control and that temporary stream diversions — often used in culvert and bridge work — could be challenged.
Habitat Division Biologist Ron Benkert said in an interview that Fish and Game already discourages the use of rock rip-rap when other bioengineered solutions such as root wads or other forms of woody vegetation can be used for erosion control, noting that in the most critical areas and emergency situations the department concedes to the use of rip-rap at the request of DOT and others.
He also said large, fast rivers such as the Matanuska that regularly cause significant damage are primarily migration corridors for salmon and other species that use headwaters and tributaries for spawning and rearing, so the impact of bank stabilization efforts to critical habitat is limited most times.
“Really high velocity — it’s just not a great place for fish to hang out,” Benkert said.
Anderson said the initiative makes no changes to the ability for officials to respond to emergencies.
She stressed in response to other concerns about the purview of the habitat permits that the initiative is limited to freshwater, as is the case today.
Anderson said during an editorial board meeting with the Journal and Anchorage Daily News on July 19 that the initiative is primarily aimed at solidifying scientific best practices and guidelines Fish and Game currently uses in regulation and law to insulate the permitting process from political influence.
Initiative sponsor and commercial fishermen Mike Wood has said the objective of the campaign is to fortify the state’s fish protections while the Environmental Protection Agency is scaling back its wetlands protections in the state, for example.
Currently, Title 16, the state’s anadromous fish habitat permitting statute, directs the ADFG commissioner to issue a development permit as long as a project provides “proper protection of fish and game.”
The initiative sponsors contend that is far too vague and an update is needed to just define what “proper protection” means.
In early 2017, Alaska Board of Fisheries chair John Jensen sent a letter to legislative leaders urging them to update Title 16 with opportunities for public involvement in permit application reviews and enforceable development standards.
The law now does not allow for public comment nor does it require Fish and Game to issue a public notice indicating the Habitat Division is adjudicating a permit application.
The Kenai Peninsula Borough Assembly also unanimously passed a resolution in 2016 supporting an update to Title 16 to further protect fish habitat.
DNR Project Management Associate Director Kyle Moselle said in response to questions that the vast majority of the permits DNR and DEC issue for large development projects already require public notice and comment periods, which would be a fundamental addition to the anadromous fish habitat permit process under the proposal.
Giessel said in an email that the public should be included in matters involving public resources and that is why the comment periods and notices are required for other land and water use and quality permits.
“If the issue surrounding this initiative is one of requiring an opportunity for Alaskans to comment and be involved on fish habitat permits, that is one matter. But proposing an up or down, take it or leave it, wholesale rewrite of our fish laws in November is another thing altogether,” Giessel said.
It was also unclear from the hearing when existing developments with fish habitat permits already in hand would be subject to the new permitting system.
Benkert said in an interview that while the department feels this is a “gray area” in the law, generally an existing operation would be grandfathered in until additional authorizations are needed for expansion plans or a fish habitat permit renewal. Most fish habitat permits are valid for two- to five-year periods before they need to be renewed.
“It’s kind of a check so we can just come back and see if what we had permitted five years ago is still actually being done,” Benkert described.
Stand for Salmon’s Anderson said worries about renewing permits for existing facilities “have been blown out of proportion” and re-upping authorizations should not be more difficult under the initiative.
“There’s a whole class of facilities that never had a fish habitat permit and won’t require one; (they) are not only not affected by this but never will be affected by this,” she said. “Then there’s a whole class of facilities that did require a fish habitat permit but that habitat is no longer in existence, therefore you don’t need a new fish habitat permit and it never will be contemplated because there is no fish habitat left to get a new permit for.”
White also said DOT is concerned the initiative could lead to more National Environmental Policy Act reviews for work now deemed to have a de minimis environmental impact because it prohibits Fish and Game from allowing activities that have a “significant adverse effect” on fish habitat.
DOT regularly conducts work that has some impact on fish habitat, according to White.
He said in an email that the concern specifically relates to many of the projects the department executes that are at least partially funded with federal money.
Anderson and other initiative supporters insist it is not intended to prohibit unavoidable small or temporary impacts as many fear, which is why it calls for “minimizing” impacts if avoiding them is not practical.
She also strongly contended that White “is just wrong” in his characterization of how it could lead to more projects being subject to NEPA and DOT is conflating the state and federal permitting systems.
“NEPA is triggered by a federal action that would have significant adverse effects. It is not triggered by state laws,” Anderson said.
Elwood Brehmer can be reached at [email protected].