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Opposition could lead to changes in HB 77

Posted: December 23, 2013 - 9:08pm

A proposed bill that Gov. Sean Parnell intended to streamline permitting on state lands and waters ran into a buzz saw of opposition in hearings held last week in Soldotna and Homer by Sen. Peter Micciche, R-Soldotna. “Buzz saw” might be an understatement. With only one person speaking in favor of House Bill 77 out of 125 attending in Kenai and 150 in Homer, opposition to the bill was like a spruce log going into a chip mill.

That level of opposition is what prompted him to hold hearings, Micciche said. After the last session, he said he got more emails on HB 77 than any other issue. In the central Kenai Peninsula, considered more pro-development than Homer, no one from industry could be found to speak for it at hearings there.

While the Alaska House of Representatives passed the bill 23 to 14 in the last session, with Rep. Paul Seaton, R-Homer, voting against, it’s now stalled in the Senate Rules Committee. Micciche last week said that when the Legislature convenes, he will ask that HB 77 be returned to the Resources Committee for more discussion and an effort to amend the bill.

After talking to the Senate leadership and Parnell administration, Micciche said he thinks the bill can be changed.

“It seems that all of the parties are willing to talk about solving some of the problems the public has with the bill,” he said. “I think folks in the district should be proud for choosing to be so active on House Bill 77. It has the entire state rethinking the right way to go forward on permitting, especially general permitting on water reservations and water rights.”

Parnell is open to amendments, his press secretary, Sharon Leighow, said in an email this week.

“He appreciates the public participation and looks forward to working with the Legislature as the bill moves forward,” Leighow said.

HB 77 is part of a multi-year effort to make the state’s permitting process more efficient, Leighow said. Parnell submitted it in the last session. The 13-page bill changes the process of how permits can be issued for land use and who can apply for water reservations on state water bodies, no longer allowing individuals to apply for water reservations. General permits would be allowed for activities to be authorized in advance and not on a case-by-case basis.

It also limits who can appeal permits, changing the standard from someone who is “aggrieved” to “substantially and adversely affected.” It also would limit appeals to someone who had “meaningfully participated” in the permitting process.

“There’s a lot of concern and opposition to specific parts of HB 77,” said Ed Fogels, deputy commissioner of the Alaska Department of Natural Resources, at the hearing held Dec. 10 in Homer at the Alaska Islands and Ocean Visitor Center. “The general concern and opposition is we’re taking away Alaskans’ ability to participate in the process. That’s the core concern we’re hearing from everyone.”

Micciche said he supported making permitting more efficient.

“But that doesn’t mean I believe in softening the public process,” he said.

Micciche said he didn’t like a clause in the first section that said “Notwithstanding any other provision of law, the commissioner (of Natural Resources) may authorize an activity on state land by the issuance of a general permit.”

That clause gives the commissioner too much authority, he said.

Seaton said he thought it interesting that one slide at last week’s hearing gave as an example of activity allowed under a general permit “river crossing locations for heavy equipment.”

“That ‘notwithstanding’ clause says fish habitat doesn’t apply,” Seaton said. “Why would they cite that one? … Why would you allow people to mess up streams?”

He thought everybody agreed the “notwithstanding other laws” language should not be in there, Seaton said.

“But just curing that would not cure the other ills of the bill,” he said.

A big concern of people who spoke last week had to do with restricting individuals from applying for water reservations. Fishermen, Alaska Native subsistence users and environmentalists in the past have applied for what’s called in-stream water reservations to protect fish habitat. HB 77 would allow about 35 existing water reservation applications to continue, but transfer the applications to the Alaska Department of Fish and Game and reset the date of applications.

The rights of individuals to apply for water reservations should continue, Homer writer Nancy Lord said at the hearing. Lord worked for the Legislature when water rights were being put into laws.

“I do recall how intentional it was to say a person could file for in-stream flow to protect fish, to protect the public interest,” she said. “The Legislature felt before that was tilted toward industry.”

Seaton said when HB 77 came through the House, he and others tried to amend it. Those amendments failed. The only vote he made for the bill was to change its effective date — a standard process for opponents of any bill to make sure that at least an effective date doesn’t cause inadvertent harm. He brought up problems with the bill in the House Resources Committee, Seaton said.

“The people presenting the bill did not have the authority to make the corrections,” he said. “Somebody up the chain was obviously saying ‘No, we don’t want to make those changes.’”

With 23 votes in favor of HB 77, enough representatives were willing to follow Parnell’s lead, Seaton said.

“It’s a top-down system within an administration bill. Sometimes there’s flexibility to make modifications and sometimes there’s not flexibility to modify it,” he said.

Micciche said he thinks there might be flexibility now.

“I’m hopeful that folks will be convinced that the bill can be improved,” he said. “We may not get everything we want, but I hope we can get to the point where our constituents can be heard. … It’s not going to get my vote if it it’s not going to protect the right of Alaskans to participate. Anything else would be speculation on my part, but I do anticipate positive results.”

The crowd at the hearings and the generally respectful tone impressed Micciche, he said.

“I couldn’t be more pleased with how those meetings turned out. It was just perfect,” he said. “I was very, very happy.”

That process also speaks to why citizens should be more involved in hearings on bills and given the opportunity to speak, and not just in Juneau or through Legislative Information Office audio teleconferences, Micciche said.

“With bills of this level where it takes a little more time to explain the pieces and the moving parts and the levers, it’s worth taking the time to do more public outreach,” he said.

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