JUNEAU — It is already being dubbed, “fish first, nothing else.”
Reps. Louise Stutes, R-Kodiak, and Andy Josephson, D-Anchorage, have introduced a bill that would set up a new fisheries habitat permitting system, to be administered by the state Department of Fish and Game, for construction projects that affect waterways.
Critics say the legislation would add serious burdens to environmental permit systems that are complicated enough, and set standards that many development projects will be unable to meet.
Stutes brought the bill up in the House Special Fisheries Committee, which she chairs, for an initial hearing April 11. She said she will not push to move the bill this year, but will hold it for interim work and possible action in 2018.
Although he is not listed as a co-sponsor, the bill is reportedly a priority for House Speaker Bryce Edgmon, D-Dillingham.
One effect of the bill is a presumption that all waters of the state support anadromous fish and would be listed by ADFG, which would trigger the permit requirement.
Many Alaska streams do not support anadromous fish, and for those the developers would have to do site-specific studies to show salmon or other species are not present.
Under current law, the Habitat Division of ADFG maintains the Anadromous Waters Catalog of streams that support anadromous fish.
If projects affect a listed stream a state permit is now required, but what is proposed in HB 199 is far more stringent. For major projects ADFG would have to do a detailed analysis not unlike the state Best Interest Finding documents prepared by the Department of Natural Resources for major state decisions.
Fisheries groups supporting HB 199 say the current Title 16, which sets out the anadromous fish stream protection dates from the early 1960s, needs an update. The state Board of Fisheries wrote a letter in January urging legislators to update the statute and include public notifications, which are not in the current law.
Advocates for HB 199 argue the process for listing streams is cumbersome and expensive because state biologists must do field work to test for fish. Because of that only 50 percent of the streams that actually support anadromous fish are listed, it’s argued.
HB 199 would also lay out criteria for unacceptable projects causing stream impacts, which would automatically trigger a denial. Unacceptable projects would be those requiring water treatment in perpetuity, which some mining projects must do; replacement of a wild salmon stock that would be affected with hatchery stock, or a project that would dewater or divert an anadromous fish habitat for more than five years.
These requirements would effectively block projects like Pebble, the Chuitna coalmine and Susitna hydro projects.
At the April 11 hearing, fisheries groups supporting the bill said it was proposals for the Susitna and Pebble mine projects that caused them to push for specific standards to protect salmon as well as public notice requirements, both which are absent from current law.
Lindsey Bloom, a member of Juneau-based “Stand for Salmon,” said her group was among those urging the Board of Fisheries to write its letter in January.
At the hearing, critics of HB 199 said the bill goes far beyond what the Board of Fisheries recommended, however.
Maver Carey, president of The Kuskokwim Corp., or TKC, an Alaska Native Claims Settlement Act village corporation formed by several mid-Kuskokwim communities, said, “House Bill 199 appears to be an effort to fix something that is not currently broken.”
“The overreaching regulation and processes proposed will not only have a detrimental effect on proposed economic activities in the Middle Kuskokwim region, but may have detrimental effects on our much-needed community infrastructure projects along the Kuskokwim and its tributaries,” Carey wrote.
TKC is the surface landowner at the proposed Donlin Gold mine, a large project now in advanced permitting.
Two Native regional corporations, Doyon Ltd. and Cook Inlet Region Inc., shared TKC’s concerns in letter to the committee. Both corporations signed on to a letter opposing the bill submitted by the Resource Development Council, or RDC. The letter was also signed by several business and community organizations.
“Concerns with this bill start with the question of why it is necessary. What is it trying to fix?” said Marleanna Hall, executive director of the RDC, an Anchorage-based development advocacy group that counts both mining and fishing as its member industries along with oil and gas, timber and tourism.
To comply with the bill, “the added time to resource agencies, as well as permit applicants, would increase uncertainty and costs for development opportunities without a corresponding benefit to fish habitat,” Hall told the committee.
There would be effects on upgrades to community infrastructure, such as airports and roads and construction of wastewater treatment plants as well as economic development with fish processing, timber harvesting and mining and oil and gas development, Hall said.
However, the state’s premier commercial fisheries group, United Fishermen of Alaska, and other commercial and recreational fish groups have signed on with support, as well as several Native organizations.
Not all fisheries groups support HB 199, however. One, the Bristol Bay Fishermen’s Association, weighed in against the bill April 11, arguing that everything HB 199 proposes could be done by regulation, said David Harsila, president of the association, and Anchorage attorney Geoffrey Parker, who works with the Bristol Bay association.
Several at the hearing said ADFG now has authority and the flexibility to achieve the goals of HB 199 without setting up a new permit system.
In a separate statement, Kara Moriarty, president of the Alaska Oil and Gas Association, weighed in against the bill:
“HB 199 would create an expensive and cumbersome state permitting system that would be more onerous than current federal regulations. It would be harder to get state approval for oil and gas projects than it would be to get a section 7 permit under the ESA (Endangered Species Act) or a 404 (Clean Water Act) permit from the Corps of Engineers,” Moriarty said.
“The bill would be duplicative,” of other permit systems, she said. “It’s easy for the anti-Pebble community to try and make this a fish verses mining bill, but it’s way beyond that.”
Tim Bradner is co-publisher of Alaska Legislative Digest and a contributor to the Journal of Commerce. He can be reached at [email protected]