Bill easing permitting, water rules stalled but may return

Richard Mauer

A bill that critics say would grant unprecedented power to the administration to approve development projects on state land and curtail public involvement made it nearly all the way through a Legislature distracted by oil taxes and other big issues.

Then it hit a wall on the eve of a vote in the Senate.

Over the final four days of the session, House Bill 77 was held, delayed, and moved to the next day's calendar at least twice as Senate leaders who counted votes kept coming up short for passage.

Finally, on April 14, the last day of the Legislature, the bill was dumped in the Rules Committee, the committee of last resort for legislation with intractable problems. It will spend the summer and fall in that limbo, a major setback for an administration determined to promote development on state land "to provide the economic means for Alaskans to sustain themselves," as Gov. Sean Parnell said when he sent the bill to the Legislature in January.

Administration officials said last month they expect to revive the measure when the Legislature returns in January. They said they plan to build support over the interim. Opponents say they will be working just as hard to kill it for good.

"The majority of the Senate never looked at the bill till it was about to be voted on the floor," said Lindsey Bloom, a Bristol Bay fisherman and a program director for Trout Unlimited. She believes the administration bill would make it easier for two huge mining projects to be approved, the open-pit Pebble metal-ore mine in Bristol Bay and the Chuitna coal strip mine on the west side of Cook Inlet.

Both projects would cross -- and potentially damage or destroy -- salmon streams upon which environmental organizations are attempting to reserve in-stream water rights under existing law. The bill would prevent the groups from applying for future water reservations and void their current applications, though state and federal agencies could still obtain water reservations.

The 24-page bill touches on many of the land and water responsibilities of the Department of Natural Resources. In an interview, Ed Fogels, a deputy DNR commissioner, said it was largely a clean-up bill, the second in consecutive legislatures designed to streamline permitting and fix awkward or confusing language in the statute books.

Wyn Menefee, the DNR's field operations chief for mining, land and water, said the idea was to help "mom and pop" businesses on state land by making it easier and quicker for them to get approval for activities with minor environmental consequences.

But while the earlier bill passed in 2012 with a 39-0 vote in the House and 20-0 in the Senate, legislators were troubled by sections of House Bill 77 that had little to do with mom-and-pop operations.

"This is one of the most sweeping and one of the worst bills that I've seen to come before the legislature," Sen. Bill Wielechowski, D-Anchorage, said in a news conference the day the bill was supposed to reach the Senate floor. "The commissioner of DNR, if this bill passes, has the ability to override any law in the state, practically, if he wants to do something on state land. There's no public notice required, there's no appeals process required, there's no "best interest" finding required, we're taking away appeal rights. This is just a sweeping change of natural resource law. I think one of the intentions is to pave the way for the Pebble mine and you're going to see a big fight on this bill on the floor."

That fight never materialized.

Sen. Lesil McGuire, the Anchorage Republican who chairs the Rules Committee, said she wouldn't have let the bill reach the floor without at least the 11 votes it needed to pass. Wielechowski said the vote would have been tied 10-10, with all seven Democrats opposed along with the two coastal Republicans, Bert Stedman of Sitka and Gary Stevens of Kodiak, and moderate Republican Click Bishop of Fairbanks.

Bishop's aide, Pete Fellman, said so much important legislation was moving so quickly at the end of the session that Bishop wasn't able to study the effects of House Bill 77.

"The general public had a feeling that we were trying to take an individual's right to water away -- that's what everyone perceived it was doing," Fellman said Monday. "We held our ground. Click's suggestion several times was that maybe this should go back to Rules."

"Remember where we were when this came up on the calendar," Wielechowski said in an interview. "We were under the fog of oil taxes, we were under the fog of HB 4 (the in-state gas line bill), the fog of the operating budget, the capital budget, and (this bill) didn't get anywhere near the attention it deserved."

The administration early on portrayed House Bill 77 as "permitting reform" and invoked the arguments used for oil-tax cuts and other measures when it was first heard in the House Resources Committee: the bill would improve Alaska's "competitiveness." It moved through the House, where it passed 23-14 March 4.

In the last few weeks of the session, former Republican Senate president Rick Halford emerged as a force against the bill. Wielechowski said it was Halford who pointed out the section of the bill that gave broad powers to the DNR commissioner to issue so-called "general" permits -- which don't require either application or public notice to use.

"It is a very extensive pice of legislation, both in drafting style and in substantive sections," Halford said last week in a phone interview from his home near Dillingham, where he is now a guide -- and an opponent of the Pebble project. "It deals with open court cases and it has the potential to change the balance of a lot of compromises and issues that have gone back and forth over the last 20 or 30 years. Anytime you're reducing notice, reducing opportunity to be heard, reducing the rights to appeal, people are concerned."

Halford served as a legislator from Chugiak from 1979 until his retirement in 2002. While he met with senators in Juneau in opposition to the bill, he said he tracked his time to ensure did less than 10 hours of lobbying in a month -- the minimum before he would have to register. Halford is chairman of the State Officers Compensation Commission, which recommends salary rates for top administration officials and legislators.

Halford said the first section of the bill is an example of broad reach in both substance and drafting style: "Notwithstanding any other provision of law, the commissioner my authorize an activity on state land by the issuance of a general permit if the commissioner finds that the activity is unlikely to result in significant and irreparable harm to state land or resources." The only exceptions cited in the bill are to land leased for coal strip mines, or set aside as refuges, state forest or parkland.

The "notwithstanding" construction suggests that it supersedes other state laws, Halford said. The "and" between "significant and irreparable harm" means that a permit would be blocked only if both conditions were true -- significant harm alone wouldn't be enough, nor would irreparable damage, he said. And it creates a "general permit" -- one not issued to a particular person or company, but created for anyone to use without making an application.

"A general permit is not, by itself, necessarily an evil thing," Halford said. "A general permit that overrides and replaces virtually every other permit in the system is something you want to worry about." General permits, as issued by federal agencies, are usually for minor activities, such as repairing a dock by hand, with gravel by the bucket-load, not truckload.

"But this is one of the broadest ones I've ever seen," Halford said.

Mat-Su residents who might be concerned about a return of shallow-gas drilling around subdivisions should add House Bill 77 "to their worry list" because of the general permit discretion given to the DNR commissioner, he said.

Menefee, the DNR operations chief, said that even with the "notwithstanding" clause, the general permit section doesn't remove the requirement for permits from other agencies or governments, such as Fish and Game if a river would be damaged, or the Mat-Su Borough for gas drilling.

"If they don't give it, you're not allowed to go, even if we say yes," Menefee said.

He and Fogels said a general permit would most likely be issued for a "minor" activity in a particular area, say a stream crossing. Public notice would be given that a general permit was under consideration, they said. When issued, the general permit would contain constraints for protecting the environment. Someone who wanted to use the permit would alert DNR but would not have to provide public notice or obtain an individual permit.

The more complicated the activity, they said, the harder it would be to issue a general permit because it would contain too many conditions. That's why a statewide stream-crossing general permit would be unlikely, Menefee said.

Fogels said the agency hadn't yet "regrouped" after the legislative session to decide how best to resurrect the bill.

"I can tell you, there's a lot of misinformation and confusion about this bill," Fogels said. "We stand ready to go out, talk to people, and explain the details of this bill between now and the session. This bill has got too many people worried and nervous and talking."

Reach Richard Mauer at or 257-4345.



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