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Permitting bill hits bump in Senate Finance committee

Posted: April 6, 2013 - 11:06pm
Sen. Lyman Hoffman, D-Bethel, addresses officials with the state Department of Natural Resources, including Ed Fogels, left foreground, and Commissioner Dan Sullivan, right foreground, during a Senate Finance Committee meeting on Saturday, April 6, 2013, in Juneau, Alaska. Hoffman has raised concerns with a provision of HB77 that would no longer allow individuals or groups to apply for water reservations to maintain or protect water levels for things like fish habitat protection. (AP Photo/Becky Bohrer)  Becky Bohrer
Becky Bohrer
Sen. Lyman Hoffman, D-Bethel, addresses officials with the state Department of Natural Resources, including Ed Fogels, left foreground, and Commissioner Dan Sullivan, right foreground, during a Senate Finance Committee meeting on Saturday, April 6, 2013, in Juneau, Alaska. Hoffman has raised concerns with a provision of HB77 that would no longer allow individuals or groups to apply for water reservations to maintain or protect water levels for things like fish habitat protection. (AP Photo/Becky Bohrer)

JUNEAU — One of the governor’s permitting bills has hit a speed bump in the Senate, where rural lawmakers have raised concerns about the impact it will have on tribal organizations and citizens.

HB77, from Gov. Sean Parnell, is aimed at improving the permitting process and seeks to build upon past efforts to eat into a backlog of permits and authorizations.

The bill is expansive, dealing with things like land exchanges and permitting procedures. It has already passed the House and is in its final committee of referral on the Senate side, with days left in the regular session.

Critics say it could hurt the public’s ability to participate in permitting decisions. Among the bill’s more controversial provisions, it would limit administrative appeals to people “substantially and adversely affected” by a decision, who “meaningfully participated” in the public comment process.

The bill also would remove the ability of individuals or groups to apply for water reservations to maintain or protect certain water levels for purposes such as protecting fish habitat, recreation and water quality. That piece has been a focus of at-times intense discussion in the Senate Finance Committee.

Committee co-chair Kevin Meyer said he hopes to work with Sens. Lyman Hoffman and Donny Olson to see if changes can be made to the bill to make them more comfortable with it. He said he doesn’t plan to appoint a subcommittee to study the issue, as Olson, D-Golovin, suggested.

“I’m trying to figure out a way to make it work,” Meyer said. “Maybe we can’t at this point. But I haven’t given up hope yet.”

Hoffman, D-Bethel, said he sees this as a constitutional matter and finds it “unfathomable” that people’s access to water would be made more difficult, which is what he believes will happen under the bill. Hoffman said Saturday that section should be eliminated.

Sen. Anna Fairclough, R-Eagle River, said she heard more fear than fact during public testimony in opposition to the bill.

Natural Resources Commissioner Dan Sullivan said lawyers for the state are confident of the constitutionality of the provision. He said this isn’t about restricting access to water; indeed, he had previously testified that the “vast majority” of water use authorizations would not be affected by the bill.

He also said this isn’t about the proposed Pebble Mine project, as some critics have said. Of the 35 pending water reservation applicants from individuals or groups, 22 are in the vicinity of or could impact Pebble.

The provision is driven, in part, driven by what Sullivan earlier this week called a troubling “legal trend” of groups arguing in court that the state can’t issue another water right or authorization before it decides whether to grant a water reservation.

The Chuitna Citizens Coalition, which according to court records applied for a water reservation in 2009, appealed a decision by the Department of Natural Resources to grant a temporary water use permit to PacRim Coal.

A judge in February found the coalition and PacRim had competing interests in the same body of water and that water reservation applicants “are afforded some legal status that must be considered” when reviewing temporary use permits.

The granting of water reservations is relatively rare, which Wyn Menefee, chief of operations for the state Division of Mining, Land and Water, has said is largely a function of workload.

A water reservation has never been granted to an individual or group — applications date back to 1992 — and many of those applications have not been vetted by agencies to know how they might fit with agency priorities, Menefee has said.

Under the bill, the commissioner could still refer pending applications from groups or individuals to a state or federal agency or local government for consideration.

If within two years DNR does not receive notice that a governmental entity plans to pursue the reservation, the application and fee would be returned to the original applicant.

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