Facing vocal opposition, natural resources bill may face tough go in Senate

Richard Mauer
Richard Mauer

HOMER -- One major unresolved bill from the past legislative session, a sweeping law to eliminate public notice and comment when some permits are issued, ran into fierce opposition in meetings this week in the Kenai Peninsula district of Sen. Peter Micciche, prompting the Soldotna Republican to declare the measure in deep trouble.

House Bill 77, a product of Gov. Sean Parnell's administration, teetered on the verge of Senate passage in the closing days of the 2013 session in April, but was stashed in the Senate Rules Committee when vote counters projected a 10-10 tie on the floor -- a single vote shy. The bill had passed the House in March and is high on the Senate agenda when it reconvenes next month.

But Micciche, a moderate once considered a "yes" vote by opponents of the bill, said constituents have been flooding his office with comments and are even buttonholing him on the street. Nearly everyone is opposed, he said.

"I would be unlikely to support the bill in its current form," he said Wednesday. The administration should withdraw the bill and re-write it, or Senate President Charlie Huggins should return it to a new round of committee hearings, Micciche said.

The bill would extinguish too many resource protections in state law, he said, and give too much power to the commissioner of Natural Resources to allow developers free reign without the public learning of their plans. If there's a unifying force in his district, it's salmon, Micciche said. Commercial and sports fishermen may be at each other's throats over allocation, but they're a potent political force when it comes to protecting fish habitat.

With six weeks before the Legislature starts up, Micciche convened "forums" on HB 77 in Soldotna on Monday and Homer on Tuesday. He lacked the authority to hold formal hearings, but the forums , with testimony from administration officials, statements by Micciche and Rep. Paul Seaton, R-Homer, and public comments in two-minute bursts. Micciche mainly controlled the sessions, announcing in Homer that it was his meeting and that meant everyone had to be polite and refrain from applause and catcalls.

That didn't stop one man from stomping out of the room at the Alaska Islands and Ocean Visitors Center, declaring as he left: "It isn't your meeting! Drop dead!"

More than 150 people attended the Homer session, and another 100 were in Soldotna. Aside from the administration officials, only one person in either location raised his hand for the bill in an informal poll, or spoke in favor during public comment. In both cases, the sole supporter was lobbyist Paul Fuhs, who flew from Anchorage to Homer just before the start of the forum.

Environmental activists brought out a crowd of House Bill 77 opponents to a meeting in Anchorage Wednesday evening.

The broad reach of the House Bill 77 starts with its opening language: "Notwithstanding any other provision of law," the Commissioner of Natural Resources is given the authority to grant a general permit for any activity on state land so long as it doesn't take place on land set aside for a coal lease, park, refuge or state forest and won't cause both "significant" and "irreparable" harm.

The bill fails to define significant and irreparable harm, leaving it up to the commissioner to define those terms. Seaton said the language would appear to allow a mine operator to wreck a salmon stream and leave nothing, as long as there was a restoration plan to repair the riverbed a half-century later.

The bill also doesn't say what a general permit is, but officials explained that it's a permit that grants the right to do something in advance, with no public notice. For instance, the state may grant a general permit to no one in particular that allows miners to cross a salmon stream with heavy equipment. From then on, within the geographic scope of that permit, any miner may take equipment across a salmon stream without notice or application. If challenged, the miner doesn't need to do any more than cite the general permit.

Micciche said the "notwithstanding" clause would allow the commissioner to ignore an entire section of state law directing the Department of Fish and Game to protect fish habitat. The clause needs to go, he said.

Deputy natural resources commissioner Ed Fogels, presenting the administration position at the Homer forum, said the intent of the bill was to only authorize general permits for small-scale activities, like allowing a cabin owner to build a dock in a state lake or "mom and pop" businesses to use state land in a low-impact way. The "notwithstanding" clause wasn't meant to reach into laws administered by other agencies, like the Department of Fish and Game.

But when he took his two minutes to speak, Seaton said courts only look to legislative intent when a law is vague.

"This statute is clear," said Seaton, one of only two Republicans to vote against the bill when it carried the House 23-14. The other Republican was also from a fishing community -- Alan Austerman of Kodiak. The only Democrat to vote for the bill was Ben Nageak of Barrow.

Seaton said he tried to get the administration to fix the bill's "numerous" problems during hearings in the House Resources Committee.

"The administration refused to take corrective action on all but one of those," Seaton said. "I would hope the Senate would not just fix one or two of these problems and then pass the bill but would actually take a very close look at fixing all of the problems."

Fogels said the administration proposed the bill to clean up what it said were a host of permitting and other issues that have arisen over the years.

"I'm not sure I like the idea of fine-tuning the permitting machine," resident Mike O'Meara said when it was his turn at the microphone. "It's more important that the process weeds out poorly conceived projects."

In addition to creating the broad general permit, the bill would bar organizations from applying for water reservations in streams, a process that environmental groups and Native tribes are using to preserve minimum flows for fish in areas targeted for mining.

The bill also reduces the rights of individuals and organizations to appeal decisions made by the Department of Natural Resources, changes the way state lands are traded or sold, and authorizes a feasibility study of a hydroelectric project at Chikuminuk Lake in a designated wilderness of Wood-Tikchik State Park.

On Wednesday, Micciche described the opposition to the bill as coming from mainstream residents as well as organized environmental groups.

"I ran on a platform of making permitting not redundant and more efficient," said Micciche, a freshman legislator and former Soldotna mayor. "However, my goal has not been to eliminate individual Alaskans from participating."

He said he could support the part of the bill that would reduce the opportunity of Outsiders to use administrative procedures and the courts to block Alaska projects.

Reach Richard Mauer at rmauer@adn.com or 257-4345.


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