By Jenny Neyman
For the Redoubt Reporter
If the Alaska Department of Natural Resources’ intentions behind a bill meant to streamline permitting processes, as explained by Deputy Commissioner Ed Fogels at a meeting Monday evening in Soldotna, were specifically spelled out in the text of the legislation, perhaps Alaskans wouldn’t be quite so opposed to it.
But in its current form, with imprecise language opening the door to interpretation, all 42 central peninsula residents to speak about House Bill 77 did so in opposition, some advocating changes to make the measure more palatable, while many others requested shutting the door on the bill altogether.
“Democracy is not efficient, it is sort of messy. And dictatorship is real efficient, they cut right to the chase, and in the long run it might not work too well as we all know,” said Marge Hays, of Kasilof.
Of all the specific concerns voiced about the bill — protection of fish-bearing waters, opportunity for public participation in the permitting process, rules governing land exchanges, and others — the common thread was trust. Namely, a lack of it. On the more lenient end of that spectrum is taking DNR at its word when it comes to some of the more nebulously worded sticking points in the bill, but being concerned that future administrations won’t uphold the intentions of the current one.
“If you’re saying, ‘This is our intent,’ you better make sure that it says, ‘This is what we’re going to do,’ because none of the commissioners, none of the deputy commissioners are going to be here forever. Sometime down the road we’re going to say, ‘What did we really want to do with this law?’ It’s got to be written out, that’s the way the law works. If it doesn’t say it in the law, then it’s not going to be followed down the road,” said Dr. David Wartinbee, a biology professor at Kenai Peninsula College and an attorney.
The other end of the public trust spectrum holds an unwillingness to extend the benefit of the doubt to the bill as written, those who would carry out the new regulations, nor administrations to come.
“It seems like it’s purposefully vague and open to interpretation. It seems like we’re being asked to put too much trust in people in administrative positions,” said Eric Treider, an oilfield worker, of Soldotna.
The Monday meeting, and another Tuesday evening in Homer, was organized by Sen. Peter Micciche, R-District O, who said that he has received more correspondences about HB77 than any other issue since being elected in 2012. Another meeting is scheduled from 6 to 8 p.m. Wednesday at the Alaska Experience Theater in Anchorage.
The bill passed the House and finished the last legislative session in the Senate Rules Committee. It was submitted by Gov. Sean Parnell and drafted by the DNR and Department of Law, and is expected to be revived next session. Given the amount of controversy that’s developed around the bill, Micciche said that he wanted an opportunity for his constituents to hear from administration representatives — Fogels and Alaska Department of Fish and Game Commissioner Cora Campbell — and be able to air their concerns.
“They didn’t have to be here,” Micciche said in thanking Fogels, Campbell and other state agency staff in attendance. “I think they’re genuinely interested in hearing what we have to say.”
Fogels explained that the bill is part of a larger directive from Gov. Sean Parnell to look at ways to improve the state’s permitting process.
“I firmly believe that we need to always strive to improve the way we do business. The state’s economy depends on wise use of our natural resources, and we want to make sure business has a proper chance to flourish. And in some areas the permitting process bogs that down,” he said.
Within DNR, he said, there had been a backlog of about 2,500 permits in the Division of Mining, Land and Water, languishing due to inefficiencies and lacking resources to process them, he said.
“These weren’t giant mine permits or giant oil and gas developments. These were little guys, little small businesses that had permits in our system that were stuck,” Fogels said.
Two years ago a housekeeping measure, HB61, began the work of updating the permitting process, and already more than 50 percent of that backlog has been cleared up, Fogels said. HB77 proposes more substantive, farther-reaching changes, in large part addressing issues brought forth by staff members who deal with the regulations day in and day out, Fogels said.
“We produced it for a reason. We have problems that we saw needed to be solved with the way DNR does its permitting. And we proposed solutions to those problems. Some of those solutions we’ve definitely heard that people don’t agree with the way we proposed those solutions, so if there are other solutions out there, then we’re listening,” he said.
He offered the department’s justifications for the main areas of contention with the bill, then listened to invited panelists experienced with DNR permitting, then members of public from the 70-plus crowd who filled the Kenai Peninsula Borough Assembly chambers at the George A. Navarre Borough Building.
Generally lacking specificity
The ability of the public to weigh in on permits is one of the areas of contention. The bill would codify DNR’s current practice of issuing general permits for activities that are low-impact and repetitive. Basically, it’s issuing one umbrella general permit that would cover similar projects, rather than permitting each separately anytime a new one comes up. For instance, installing mooring buys in the Kasilof River, Fogels said.
Public notice would be issued and comments taken for the general permit, but not each subsequent activity that would be lumped under that general permit. That change does not lessen the public’s ability to weigh in, so much as just change when that happens, Fogels said.
“We do the public notice up front so there’s less public notice down the road for those small activities,” he said.
Many speakers Monday did not see it that way.
Rep. Paul Seaton, R-District 30, voted against HB 77. If DNR gets to determine the scope and geographic area a general permit will cover, it could be so large that meaningful participation at the local level is lost.
“All you people who are in Funny River or Kasilof, there’s going to be this hearing about a general permit covering maybe the entire Cook Inlet or the entire Kenai Peninsula, and then when it comes to a specific permit in your area you’re not going to be able to comment on it because it’s not going to be adjudicated separately — bad thing for local residents to have impact,” Seaton said.
General permit decisions can be appealed, Fogels said, although HB 77 also proposes a “raising of the bar” of participation in the DNR appeals process.
Fogels said that the current system is unwieldy, in which anyone can appeal a decision for any reason.
“That starts a whole big process for us. Almost every decision we make gets appealed one way or another. Quite frankly, a lot of them really don’t have a lot of merit. People just don’t like the decision; they might not even live in Alaska. We’re trying to make it so people have a good reason to appeal a decision,” he said.
Current language requires only that someone be “aggrieved” to file an appeal.
“That’s very broad language. You can be aggrieved just because you just don’t like it,” he said.
The change would require someone be “substantially and adversely affected.”
“You just have to show us how our decision is going to harm you. It raises the bar for an appeal,” he said.
But how is “substantially and adversely affected” defined?
“It looked like that could be narrowly construed as physically or financially affected. It wouldn’t necessarily cover something like the spiritual connection to the land or cultural issues,” said Jane Haigh, a history professor at Kenai Peninsula College. “… I don’t think there could be too many safeguards or too much opportunity for the public to participate in this process.”
For some, any limiting of the public’s involvement in permitting was a nonstarter.
“I’m not a commercial fisherman, but I’m an Alaskan from the tip of my hair to the bottom of my toes, and nobody should be able to tell me that I don’t have a right to put input on anything the state government is going to decide,” said Marilyn Connell, of Soldotna.
“Yes, there should be resource development, but not without the input and safeguards the people of Alaska bring to the table for discussion. Many times individuals at the local level are more attuned to their environments and the needs of their surroundings than administrators sitting in Anchorage or Juneau,” said Bob McCard, of Kasilof.
The bill is drawing fire from opponents of Pebble and Chuitna mines, accused of being a way to squeak permit approval past the public as projects potentially lumped under a general permit.
“What’s the number-one thing I hear? That House Bill 77 is a Chuitna, Pebble Mine bill, so how do we ensure to Alaskans with passing the red face test that a general permit is not to be used for something extremely controversial?” Micciche asked.
Because the department is saying it won’t.
“We were very clear in our testimony on the record that our intent is for these to be general permits for small permit activities with repetitive sort of activities. Low impact. That is the intent of this particular change,” Fogels said. “… At this point all I can do is reinforce our intent on the record, in testimony that that’s what it’s meant to do.”
There is some language limiting the scope of general permits — that a general permit can’t be issued for activities occurring inside state forests, parks and game refuges, nor for coal mining (as that’s a federally delegated program), nor for activities where “significant and irreparable” harm would be caused.
But again, respondents challenged, a definition of “significant and irreparable harm” isn’t spelled out in the legislation, and many speakers Monday did not want to trust the department to make that call, especially after DNR in July rejected a petition filed by Trustees For Alaska that would have designated some state lands within the Chuitna River watershed as unsuitable for coal mining.
“The ‘significant an irreparable harm’ standard is going to be interpreted by the department. We know what that means, we’ve already heard their determination that digging up 11 miles of salmon stream is not ‘significant or irreparable harm’ because maybe in 30 years they can rebuild that stream,” said Rep. Seaton.
A bit of wording in the general permits section of the bill drew even more fire — “notwithstanding any provision of law.” That’s meant only to refer to DNR statutes, Fogels said, not other areas of state law.
“People have read into our language that we are proposing authority to trump Fish and Game statutes, DEC statutes and that the commissioner will issue general permits for Pebble Mine without public notice. That is totally false. That is not the intent of this change,” Fogels said.
“Nothing in House Bill 77 affects the authorities of the Alaska Department of Fish and Game,” Campbell reiterated.
Under Title 16, Fish and Game requires a fish habitat permit for any water removal from fish-bearing waters, she said, and that wouldn’t change.
“There are layers in protection that will remain in place that HB77 does nothing to affect,” she said.
But that’s not specifically what the bill says, charged many speakers.
“As an attorney I can read that statement that says ‘not withstanding other provisions of law.’ And when I read that that says anything else is trumped. I’m sorry, folks, if you want it to say that, say it. If you want it to say something different, then you’d better change that wording,” Wartinbee said.
At a boil
Water usage is another sticking point for opponents of the bill. Fogels explained that HB77 would do nothing to change the regulations governing water rights or temporary water use authorizations.
“Nothing in this legislation affects your ability to take water and use it,” he said.
What it would do is change who can apply for the issuance of water reservations, which preserve a certain quantity of water that must remain in a water body for a public purpose. Currently anyone can apply for a water reservation for one of four reasons — fish habitat, water quality, navigation or recreation. The bill would change it so only governmental agencies are able to apply for water reservations.
“Alaska is one of the only states that currently allows persons to apply for a water reservation. In most the other states you have to be a public agency — a state, local or federal government agency — to apply for a water reservation. The reason is, it’s water that stays in the water body for a public purpose. … We do believe it’s a public asset that should be applied for and held by a public agency.”
Not even federally recognized Native tribes would be recognized as public agencies.
“We looked at constitutionally outlined governmental entities. Tribes, while they may very well be one of the only governmental entities in rural Alaska and represent most of the people within their geographic area, in other parts of the state they don’t represent everybody in their geographic area. They may only represent a minority of the population within that geographic area. So we felt it was very important that, to be a public agency or entity, that it represent all Alaskans within that geographic area,” Fogels said.
Brenda Trefon, environmental director for the Kenaitze Indian Tribe, was one of many speakers Monday to protest that proposed change.
“Alaskan people have been governing resources for thousands of years in Alaska, long before anybody ever talked about statehood. The Kenaitze Indian Tribe is the federally recognized tribe with over 4,000 members and strongly opposes House Bill 77,” she said.
DNR’s reason for the proposed change is to stave off “potential misuse of water reservations,” Fogels said. Applying for a water reservation is a five-year process of expensive and time-consuming data collection to determine the quantity of water that must be reserved to protect for the public purpose being applied.
“We were being challenged that we shouldn’t allow anybody else to use water in that creek for the five years that it takes to collect that data. We do not think that it is good public policy to restrict other Alaskans from using that water for five whole years while this data collection goes on,” Fogels said.
Robert Ruffner, executive director of the Kenai Watershed Forum, said the effect of that change would be to limit collection of that data by organizations like his.
“That data is not just important for fish, it’s used for emergency management purposes, road design issues. Having that bank of data is really important,” he said. “… If we can figure out some way to make us all more comfortable with that to allow these private-public partnerships to benefit the ability to collect this data that can be used not only for fish, but for all these other public purposes, I think that would be a real big benefit to the state. And what I see in this right now is really squelching that desire to continue to collect that data in partnership.”
Campbell said her department has been open to partnering with people and non-governmental agencies interested in securing water reservations to protect fish habitat and will continue to do so to the point of being willing to act as the public agency in applying for reservations.
“We would still be committed to working with interested groups in ensuring that those that share our interest in in-stream flow reservations still have every opportunity to partner with us in obtaining those reservations, so that avenue would still be available,” she said.
Of the about 35 water reservation applications permits pending with DNR, Campbell said that Fish and Game has said it is willing to serve as the applicant of record.
“All of those folks are going to have a willing partner in pursuing those reservations,” she said.
But there’s no language binding Fish and Game to do so, so what if minds change?
“I know you say, ‘Oh no, it’s not going to change, it’s not going to change.’ And if you want a frank discussion I’ll tell you I don’t believe that or we wouldn’t be going down that path,” Ruffner said.
Proposed changes to DNR’s land-exchange statute also went over like a lead balloon. Dispensing land is a very important part of DNR’s charge, Fogels said, but current regulations with Alaska’s complex land ownership patterns make it difficult to do that.
“The current land exchange law requires us to exchange land for equal value, and it’s simply unworkable,” he said. “… Without some change to the land exchange statutes we just won’t be able to do land exchanges unless people are willing to put up with years of process and lots of public money to do the exchange.”
The two parcels must be appraised to see if they equal in value. If they don’t — which is often the case — the need to be surveyed and replatted to make them equal. “It can take years and for most part doesn’t work out,” Fogels said.
HB 77 would make it so the DNR director, “may enter into an exchange with a finding that the value of the property to be received together with other public benefits equals or exceeds the value of the property.”
“The intent of this change is to allow us to be able to have flexibility in how we structure those land exchanges. It still has to be done by the commissioner’s best interest determination, that this is in the best interest of the state,” Fogels said.
There’s that word “intent” again.
“The way that I interpret that is the director can exchange land for public benefit, and my concern is that you could see the creation of jobs from the Chuitna Coal Mine, for example, as a benefit to the public and therefore enter into an exchange agreement for the promise, but not the guarantee, of jobs down the road,” said Lindsey Bloom, of Juneau, a board member of the Alaska Independent Fishermen’s Marketing Association and chair of the environment committee for United Fishermen of Alaska (though said her comments were not on behalf of those organization).
Step back going forward
At the end of the meeting, the overwhelming call from speakers was to scrap the bill or significantly overhaul it.
“There are some pretty significant concerns in this bill that I think have been expressed very wisely and eloquently tonight. I’d like to hear if the administration, the governor is willing to listen to this feedback and make some changes to this bill before it goes back to the floor. That’s what I’ve heard everyone in this room ask for,” Bloom said.
“I think a lot of people do agree with some of the issues that DNR faces in trying to be more efficient in your permitting. Better use of our taxpayer money, we want to see those things, but we don’t want to see them sold out to the degree that they were in what we see in writing right now,” Ruffner said.
Micciche said that his office is accepting written comments on HB77 and will forward those and a transcript of the meetings on to DNR and the governor. Fogels said that he would send the feedback on up the chain.
“We’ve heard a lot of really good input here tonight. I’m going to take it all back, I’m going to brief the governor on it, I’m going to brief (DNR Acting Commissioner Joe Balash) on it. We’ll bring it back and we’ll work with the Alaska State Legislature next session and see where we can go with this,” he said. “… We’ve got 105 million acres of land that we’re supposed to use and manage. We’re supposed to provide an economy for Alaskans, we’re supposed to make sure the fish and the resources are protected. It’s a big balancing act,” he said.