Central Peninsula speaks out against HB77

Commenters: Changes to bill are needed; don't cut the public out

Editor's note: this story was edited to correct the spelling of Dave Wartinbee's name.



The central Kenai Peninsula’s sometimes polarized community came together Monday to protest the proposed House Bill 77 during testimony in Soldotna.

Without exception, the public expressed displeasure for two portions of HB77: the removal of public input on permits and the loss of personal access to water reservation.

Consistently, public concern was wrapped in a vocal distrust for the Alaska Department of Natural Resources and the administration of Gov. Sean Parnell, which they claim are selling out Alaskans in favor of corporations.

Local salmon educator, entertainer and activist Dan Pascucci sang his testimony disapproving of HB77 claiming that DNR, once tasked with resource conservation, had turned into a new acronym — do not regulate corporations.

“I’m a corporation in Alaska, making money is my task-a. Please give me a permit without question, pass the House Bill, please, this session,” he sang.

The main concern of those attending the hearing, which was held in the Kenai Peninsula Assembly Chambers and sponsored by Sen. Peter Micciche, R-Soldotna, was that the bill would centralize decisions on state land use with the commissioner of DNR, and therefore the governor.

Micciche called for hearings in Soldotna and Homer, he said, because he received more email correspondence for HB 77 than any other bill during the 2013 Legislative session.

Micciche put together a panel of stakeholders and leaders from the governing agencies for two nights of explanation and public testimony.

House Bill 77 is a 24-page, 51-section proposed law seeking to streamline the DNR permitting process for the use of state land for economic development. The proposed law passed through the House 23 to 14 before being stopped in the Senate and sent back to the Rules Committee.

“It exists in Rules today,” Micciche said.

Critics say HB77 will streamline Alaskans out of the permitting process and silence public input on projects that affect renewable resources, such as salmon, in favor of a resource extraction economy.

Parnell sponsored HB77 but Alaska Department of Natural Resources Deputy Commissioner Ed Fogels said his department wrote the bill largely by building upon HB 61, which passed with “hardly a sneeze.”

Fogels acknowledged the proposed law is “far-reaching and controversial.”

Current DNR permitting laws slow down development and progress, Fogels said. When HB 77 began 2,500 permits were backlogged. That has since been reduced by 50 percent, he said.

HB77 is part of a “big initiative” on how the state does business in the name of Alaskans. DNR is looking to stop appeals “that don’t have merit,” he said.

In his opinion, three sections have brought public ire upon HR77: the allowance of general permits; a change to who can apply for a “water reservation”; and changing who can appeal a DNR decision.

General permits would extend to permit future similar activities and development without public notice or process once the original permit was issued.

Only governments will be allowed to hold water reservations.

Current appeals need no reason; HB77 will require an appeal to show a substantial and adverse affect.

“We can see misuse coming down the road,” Fogels said. “We’re trying to improve the process for all Alaskans.”

By misuse Fogels means water reservation applications by individuals or non-government groups to muck up larger mining company permits, such as the Pebble Mine project and the Chuitna Coal Mine on the west side of Cook Inlet.

Under current state law, private individuals, organizations, and government agencies can apply for a reservation of water for instream use. The application can lead to years of study that might stop or slow down other development, such as mining or dam operations. That would end if HB77 passes as written.

Of the 35 personal or organizational water reservation permits currently sought, most are in areas where large-scale operations want to open — Chuitna, Pebble Mine and the Susitna Hydroelectric Project, he said.

“I wouldn’t want the Pebble mine to hold a water reservation either,” Fogels said.

Kenaitze Environmental Program Director Brenda Trefon took issue with the notion that federally recognized tribes such as hers should have no right to seek a resource permit such as a water reservation. She noted that if HB77 passed 16 tribal permits would be revoked or not allowed.

Fogels said that a government, under the new definition, must represent all Alaskans in a geographic region. Tribes don’t do that, he said.

“Alaska people have been governing resources for thousands of years,” Trefon said.

Bob McCard of Kasilof said the bill went too far and infringed on the democratic process, giving too much power to the commissioner of natural resources.

Most of those who spoke were concerned about the effect HB77 would have on fish habitat by cutting out the public from the process of permitting mines and other industry on state lands.

Alaska Department of Fish and Game Commissioner Cora Campbell said that regardless of HB77 empowerment of DNR her agency would still regulate development’s affect on fisheries and fish habitat through Title 16 laws. Any proposed use of state land would require an ADFG Title 16 Fish Habitat Protection Permit, she said

Campbell’s confident stance was quickly countered by biology professor and lawyer Dave Wartinbee, who pointed out that Section 1 of the proposed HB77 trumps all other laws in the state in governing the issuance of a general permit, on state land, by the commissioner of DNR.

The exact language says, “Notwithstanding any other provision of law, the commissioner may authorize an activity on state land by the issuance of a general permit.”

“Anything else is trumped,” Wartinbee said. “DNR says they want the provision to stop abuse of the water reservation, I don’t believe that’s going to happen.”

Lindsey Bloom, a Juneau fisherman and board member of United Fisherman of Alaska and affiliated with the Independent Fishermen’s Marketing Association, took a last minute seat on the panel. Her biggest concern was the change to the general permit. She wanted more understanding of the intent of the new permitting process and said that intent should be written into the bill so that future leaders don’t misuse it.

“What kind of guarantees are there?” Bloom asked.

Micciche, a sport and commercial fisherman, said his biggest concern is for adequate in-stream water reserves for fish. Stepping up for his constituency’s biggest concern, Micciche asked how do "we decide what’s appropriate for general permitting?"

Micciche said he trusted Fogels’ motives, with regard to the expanded scope of general permitting, but said that Fogels won’t hold his position forever.

Admitting that he very much liked corporations and how they bring jobs and economic growth to the state, Micciche said they shouldn’t have more rights than Alaskans.

“The law should be defined better,” he said.

Micciche also took exception to the idea that HB77 would trump all other state land use laws and regulations.

“It needs work,” Micciche said of HB77. “It’s in Rules Committee now and work can be done there or on the floor.”

HB77 seeks to allow DNR to issue permits, in many situations, without public notice, explanation or redress.

Fogels said HB77 is expressly about jobs for Alaskans and called the management of the state’s 105 million acres a “balancing act” of economic use and while protecting the land.

“We need to ensure an economy in the state,” he siad.

Executive Director of the Kenai Watershed Forum Robert Ruffner said one concern he had about HB 77 was the removal of those who can apply for instream flow estimates.

Ruffner recommended that HB77 be pulled back and rewritten with more public involvement.

“Alaskans are not likely to give up rights,” he said.


Reach Greg Skinner at greg.skinner@peninsulaclarion.com.


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