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HOUSE BILL NO. 199
IN THE LEGISLATURE OF THE STATE OF ALASKA
THIRTIETH LEGISLATURE - SECOND SESSION
BY REPRESENTATIVES STUTES, Josephson, Gara, Tarr
Introduced: 3/27/17
Referred: House Special Committee on Fisheries, Resources
A BILL
FOR AN ACT ENTITLED
1 "An Act establishing general fish and wildlife permits and major and minor
2 anadromous fish habitat permits for certain activities; establishing related penalties;
3 and relating to the protection of fish and game and fish and game habitat."
4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:
5 * Section 1. AS 16.05.861 is amended to read:
6 Sec. 16.05.861. Penalty for violating fishway [AND HATCHERY]
7 requirements. (a) The owner of a dam or obstruction who fails to comply with
8 AS 16.05.841 [OR 16.05.851] or a regulation adopted under AS 16.05.841 [OR
9 16.05.851] within a reasonable time specified by written notice from the commissioner
10 is guilty of a misdemeanor, and is punishable by a fine of not more than $1,000. Each
11 day the owner fails to comply constitutes a separate offense.
12 (b) In addition to the fine, the dam or other obstruction managed, controlled,
13 or owned by a person violating AS 16.05.841 [OR 16.05.851] or a regulation adopted
14 under AS 16.05.841 [OR 16.05.851] is a public nuisance and is subject to abatement.
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1 * Sec. 2. AS 16.05.871 is repealed and reenacted to read:
2 Sec. 16.05.871. Determination of anadromous fish habitat. (a) The
3 commissioner shall specify in regulation all the various water bodies or portions of
4 them that are important anadromous fish habitat, including those water bodies or
5 portions of them that are presumed to be important anadromous fish habitat under (c)
6 of this section.
7 (b) A determination that a water body is not important anadromous fish habitat
8 must be supported by the commissioner's written finding. The department may
9 conduct a site-specific determination to determine whether a water body, or portion
10 thereof, is important anadromous fish habitat. Any person may request a site-specific
11 determination. The commissioner shall adopt regulations specifying how the
12 department shall conduct site-specific determinations.
13 (c) In the absence of a site-specific determination by the department under (b)
14 of this section, the commissioner shall presume that a naturally occurring permanent
15 or seasonal surface water body is important anadromous fish habitat.
16 (d) In this section, "anadromous fish habitat" means a naturally occurring
17 permanent or seasonal surface water body and its adjacent riparian areas that
18 contribute, directly or indirectly, to the spawning, rearing, migration, or overwintering
19 of anadromous fish.
20 * Sec. 3. AS 16.05 is amended by adding new sections to read:
21 Sec. 16.05.873. General permit for fish and wildlife habitat protection. (a)
22 The department may permit similar activities that do not have the potential to
23 significantly affect anadromous fish habitat or other fish and wildlife habitat on a
24 regional or other geographical basis through a general permit issued under this section,
25 if the commissioner determines that
26 (1) the activity, singly or in combination with other factors, poses little
27 potential to significantly affect fish and wildlife habitat;
28 (2) the activity does not relate to industrial development;
29 (3) the potential adverse effects of the activity may be prevented by
30 requiring certain conditions and stipulations on the activity;
31 (4) permit conditions and stipulations are mandatory and enforceable;
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1 and
2 (5) a general permit for the activity is in the public interest.
3 (b) When the commissioner makes a determination to issue a general permit
4 under this section, the commissioner shall provide public notice of the proposed
5 permit and opportunity to comment under (e) of this section. Additionally, the
6 commissioner shall hold at least one public hearing if requested by an interested
7 person. If no request for reconsideration is timely received under AS 16.05.889, and
8 the commissioner determines the general permit meets the requirements in (a) of this
9 section, the commissioner may issue a general permit. A general permit issued under
10 this section must be renewed every five years.
11 (c) A person conducting an activity under a general permit shall first obtain a
12 written authorization from the department. The department shall issue or deny a
13 requested authorization within five days. The department may make general permit
14 authorizations available through electronic means. The general permit authorization
15 shall set out conditions and stipulations to avoid adverse effects to fish and wildlife
16 habitat.
17 (d) The commissioner may amend a permit issued under this section at any
18 time to include additional conditions and stipulations or may rescind the permit if the
19 commissioner determines that the permit does not protect fish and wildlife habitat. The
20 commissioner shall provide public notice under (e) of this section of
21 (1) changes proposed by the commissioner to a permit issued under
22 this section; or
23 (2) a determination made by the commissioner to rescind a permit
24 issued under this section.
25 (e) The department shall provide public notice of a determination made under
26 this section. The department shall
27 (1) post notice of the permit decision or commissioner's determination
28 on the Alaska Online Public Notice System (AS 44.62.175);
29 (2) make a copy of the respective permit or determination available on
30 the department's Internet website; and
31 (3) provide at least 30 days for public comment.
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1 Sec. 16.05.875. Anadromous fish habitat permit. (a) Except in an emergency
2 under AS 16.05.891, a person shall obtain an anadromous fish habitat permit under
3 AS 16.05.883 or 16.05.885 before conducting an activity that may use, divert,
4 obstruct, pollute, or otherwise affect a water body, or portion thereof, that is specified
5 as an important anadromous fish habitat under AS 16.05.871(a).
6 (b) An applicant shall complete an application on a form approved by the
7 department for a permit under AS 16.05.883 or 16.05.885 and submit the application
8 to the department. The commissioner may require additional information from an
9 applicant before approving an application. An applicant shall provide all information
10 requested by the commissioner to reasonably assess a proposed activity's effects on
11 anadromous fish habitat, including
12 (1) the scope and duration of the proposed activity; and
13 (2) mitigation measures planned for areas of affected anadromous fish
14 habitat.
15 (c) Upon receiving a complete fish habitat permit application, any fee required
16 under AS 16.05.893, and any other information requested by the commissioner under
17 (b) of this section, the commissioner shall determine the proposed activity's potential
18 effects on anadromous fish habitat under AS 16.05.877. Before making the
19 determination, the commissioner may work with the applicant in planning the activity
20 to avoid or minimize the activity's potential adverse effects on anadromous fish habitat
21 under AS 16.05.877.
22 (d) If the commissioner determines that a proposed activity, as conditioned by
23 permit requirements and mitigation measures that would likely be required of the
24 activity by the department under AS 16.05.887, will not significantly adversely affect
25 anadromous fish habitat under AS 16.05.877, the commissioner shall classify the
26 application for the activity as an application for a minor permit under AS 16.05.883.
27 (e) If the commissioner determines that a proposed activity has the potential to
28 significantly adversely affect anadromous fish habitat under AS 16.05.877, the
29 commissioner shall classify the application for the activity as an application for a
30 major permit under AS 16.05.885.
31 (f) The department shall provide public notice of a determination made under
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1 this section. The department shall
2 (1) post notice of the determination on the Alaska Online Public
3 Notice System (AS 44.62.175);
4 (2) make a copy of the application available on the department's
5 Internet website; and
6 (3) for an activity that the commissioner has determined under (e) of
7 this section to require a major permit, provide at least 30 days for public comment.
8 (g) In this section, "anadromous fish habitat" has the meaning given in
9 AS 16.05.871.
10 Sec. 16.05.877. Significant adverse effects. (a) A proposed activity has the
11 potential to significantly adversely affect anadromous fish habitat under AS 16.05.871
12 - 16.05.901 if the proposed activity, singly or in combination with other factors, will
13 (1) impair the quality, quantity, or flow of water necessary for a water
14 body to support anadromous fish habitat;
15 (2) impede or prevent the safe, timely, and efficient upstream and
16 downstream passage of anadromous fish to areas of anadromous fish habitat;
17 (3) impair the quality or flow of a water body that is not anadromous
18 fish habitat, but is necessary to preserve the quality or flow of a water body that is
19 anadromous fish habitat;
20 (4) reduce aquatic habitat diversity, productivity, stability, or function;
21 (5) adversely affect other fish and wildlife that depend on the health
22 and productivity of that anadromous fish habitat; or
23 (6) violate any additional criteria, consistent with the requirements of
24 AS 16.05.871 - 16.05.901, adopted by the commissioner by regulation.
25 (b) In this section, "anadromous fish habitat" has the meaning given in
26 AS 16.05.871.
27 * Sec. 4. AS 16.05.881 is amended to read:
28 Sec. 16.05.881. Construction without approval prohibited. If a person or
29 governmental agency conducts an activity [BEGINS CONSTRUCTION ON A
30 WORK OR PROJECT OR USE] for which a permit [NOTICE] is required by
31 AS 16.05.875(a) [AS 16.05.871] without the appropriate permit issued under
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1 AS 16.05.883 or 16.05.885 [FIRST PROVIDING PLANS AND SPECIFICATIONS
2 SUBJECT TO THE APPROVAL OF THE COMMISSIONER FOR THE PROPER
3 PROTECTION OF FISH AND GAME, AND WITHOUT FIRST HAVING
4 OBTAINED WRITTEN APPROVAL OF THE COMMISSIONER AS TO THE
5 ADEQUACY OF THE PLANS AND SPECIFICATIONS SUBMITTED FOR THE
6 PROTECTION OF FISH AND GAME], the person or agency is guilty of a
7 misdemeanor. If a person or governmental agency is convicted of violating
8 AS 16.05.871 - 16.05.901 [AS 16.05.871 - 16.05.896] or continues an activity [A
9 USE, WORK, OR PROJECT] without fully complying with AS 16.05.871 - 16.05.901
10 [AS 16.05.871 - 16.05.896], the activity [USE, WORK, OR PROJECT] is a public
11 nuisance and is subject to abatement. The cost of restoring a specified water body or
12 portion thereof [RIVER, LAKE, OR STREAM] to its original condition shall be
13 borne by the violator and shall be in addition to the penalty imposed by the court
14 under AS 16.05.901.
15 * Sec. 5. AS 16.05 is amended by adding new sections to read:
16 Sec. 16.05.883. Minor anadromous fish habitat permit. The commissioner
17 may issue a minor permit for an activity after issuing public notice of the
18 determination under AS 16.05.875(f). A minor permit issued under this section must
19 include any necessary permit conditions or mitigation measures required of the
20 permittee under AS 16.05.887.
21 Sec. 16.05.885. Major anadromous fish habitat permit. (a) Unless
22 reconsideration is requested under AS 16.05.889, the commissioner shall, after
23 providing notice under AS 16.05.875(f) of a determination under AS 16.05.875(e),
24 prepare a draft major anadromous fish habitat permit assessment that identifies and
25 describes
26 (1) the proposed activity;
27 (2) the extent and duration of the effects the activity will have on
28 anadromous fish habitat;
29 (3) possible alternatives or modifications to the proposed activity that
30 will avoid or minimize the activity's adverse effects on anadromous fish habitat;
31 (4) any permit conditions and mitigation measures that the department
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1 may require of the permittee under AS 16.05.887;
2 (5) if applicable, the amount of the performance bond necessary to
3 restore anadromous fish habitat if the permittee does not meet the permit conditions
4 and mitigation measures required under AS 16.05.887; and
5 (6) the commissioner's determination of whether the proposed
6 activity's significant adverse effects, singly or in combination with other factors,
7 (A) can be prevented or minimized under (d) of this section; or
8 (B) are likely to cause substantial damage to anadromous fish
9 habitat under (e) of this section.
10 (b) An applicant for a permit under this section shall collect information
11 reasonably requested by the commissioner under AS 16.05.875.
12 (c) Upon completion of the draft assessment under (a) of this section, the
13 department shall
14 (1) post notice on the Alaska Online Public Notice System
15 (AS 44.62.175);
16 (2) make a copy of the draft assessment available on the department's
17 Internet website; and
18 (3) provide at least 30 days for public comment.
19 (d) A proposed activity's significant adverse effects may be minimized under
20 this section if the activity's potential significant adverse effects on anadromous fish
21 habitat under AS 16.05.877, as conditioned by permit requirements and mitigation
22 measures required of the activity under AS 16.05.887, are not permanent and that
23 anadromous fish habitat affected by the activity will likely recover or be restored
24 within a reasonable period to a level that sustains the water body's, or portion of the
25 water body's, natural and historical levels of anadromous fish, other fish, and wildlife
26 that depend on the health and productivity of the anadromous fish habitat.
27 (e) A proposed activity's significant adverse effects on anadromous fish
28 habitat under AS 16.05.877 cannot be prevented or minimized if th