HB77 bill changes address some concerns

UPDATE: An additional public input period has been scheduled for Friday, March 14, at 3:30 p.m. 

The Alaska State Senate is considering HB77, a bill that was designed to streamline permitting, but which has drawn much concern from the public since passed by the House a year ago. Yesterday, the Department of Natural Resources (DNR) provided testimony to the Senate, including documents that reflect revisions to HB77 in response to some of those concerns.

Pebble Watch previously reported on a hearing where members of the public voiced many concerns. Below is our summary of those issues and how they’ve been handled in the latest version of HB77. Public testimony for the new version of HB77 is scheduled for Wednesday, March 12, at 3:30 p.m. Contact your Legislative Information Office to find out how to participate.

Concern with previous version of HB77

How has the new version addressed the concern?

General permits – HB 77 would give the Commissioner of DNR the authority to issue a general permit, which caused concerns that the Bill as written gave the Commissioner too much authority. Adds detail regarding when and how a general permit may be issued:

  •  May only be issued for activities that the department can already authorize under existing statutes (AS 38.05 and 38.95), which eliminates general permits for decisions on easements, oil and gas or mineral leasing, coal leases and more. General permits may not be issued in State Forests, Game Refuges or State Parks.
  •  May only be issued if unlikely to result in “significant or irreparable” harm to state land or resources.
  •  Public notice and comment periods are now required.
Aggrieved persons – The change proposed under HB 77 would effectively limit who can appeal a decision. Many citizens were concerned by this, stating they want a clear definition of how the State would define who is “substantially and adversely affected.”

Under current statute, any “aggrieved person” can appeal a permit decision. Under HB 77, the person would have to be “substantially and adversely affected” by the project and would also need to have “meaningfully participated” in the permitting process – typically by submitting written or oral testimony. 

No changes in new version.
Water rights applications – Under current law, water reservations (also called “instream flow reservations”) can be made by private individuals, organizations, and government agencies. HB77 would change that by limiting water reservation applications to government agencies only. If HB77 were to pass, existing applications from individuals and organizations could only be considered if assumed by another government agency. Some expressed concern at this limitation, particularly organizations such as Bristol Bay Native Association, which has spent hundreds of thousands of dollars in support of its water reservation applications. 

According to a 2013 report from Alaska Department of Fish and Game, there were 35 instream water reservations from individuals or organizations that were pending with DNR at the end of 2012, some filed years ago. According to a summary document prepared for Senate review of HB77, no instream flow reservation certificate has ever been awarded to an individual. Alaska Department of Fish and Game has reported a long history of partnering on such applications and would be willing to assume those that are currently pending, using data that has already been gathered. 

Changes include:

  •  A person may apply for a reservation of water, but the reservation must be issued to an appropriate state agency, not to an individual. A minimum of 5 years of hydrologic data collection is required for a certificate.
  •  All pending applications filed before the effective date of the Act would be processed under the provisions of the Act.
  • “Federally recognized tribe” is added under the definition of “person,” giving tribes the right to make water reservation applications.
Hydroelectric study – At the end of the last legislative session, HB77 was combined with Senate Bill 32; the full bill now includes language related to authorizing a hydroelectric study in Wood-Tikchik State Park. Some public comments have called for the bills to be separated and considered on their own merits since the issues are as alike as “apples and oranges.”No changes in new version.

 

DNR Briefing Paper

More documents, including summaries of all changes to the latest version of HB77.