Impacts of Ballot Measure 1 on Alaska

The Senate State Affairs Committee held a meeting earlier this summer to learn the impacts to our state if Ballot Measure 1 passes in November. None of the presenters took a position on the measure in favor or against, nor did any of the legislators. The meeting was called a “fact-finding mission” by Chairman Kevin Meyer, and the presenters resolutely avoided answering questions which might display bias for or against the measure.

It was an impressive line-up. Information was provided by the Alaska Department of Law (DOL), the Department of Fish & Game (DFG), the Department of Transportation (DOT), the Department of Natural Resources (DNR), & the Department of Environmental Conservation (DEC). In fact, Chairman Meyer commented that, “the appearance of . . . four commissioners shows the importance of the initiative to the administration and to the State of Alaska.”

DFG Slide

What Is Ballot Measure 1
Alaskan voters will vote Yes to adopt or No to reject the initiative on the November 6 General Election ballot. The full eight-page initiative is available here.

In summary, the act requires new requirements and standards to be applied to both public and private permitting and development projects which involve anadromous water. The burden of proof is on the initiator of the project: the presumption is that all projects will affect anadromous water unless the project initiator can prove that it does not. As stated by DOT Statewide Environmental Program Manager Ben White, “the proposed language requires applicants to prove fish do not exist for all work in Alaska waters.” DEC Division of Water Director Andrew Sayers-Fay went on to say that, “Proving the negative, that there’s never anadromous fish there, is much harder than going out to see if they do occur.”

Per the DOL presenter, Joanne Grace, anadromous water is defined in the initiative, “very, very broadly to include all lands and waters that could affect anadromous fish, even indirectly.”

Anadromous fish include all five species of Alaskan salmon, rainbow and cutthroat trout, Arctic char, Dolly Varden, sheefish, smelts, lamprey, whitefish, and sturgeon.

Per the presenters, the range of projects potentially affected is broad, with examples listed below. The measure would affect not just new projects, but improvements and maintenance as well.

  • culverts
  • bridges
  • roads (including ice roads)
  • residential construction, including homes, outbuildings, driveways
  • commercial construction
  • embankments
  • airports/runways
  • docks (of all sizes from small private to large ship docks)
  • sewer projects including some septic systems
  • ferry terminals
  • pipelines
  • water tenders for firefighting
  • mines
  • dams
  • school construction
  • landfills
  • trails

How Much Will It Cost
The administration submitted an initial estimate of implementation costs to the state of nearly $2.1 million. The bulk of this amount is costs to the Department of Fish & Game. Commissioner Sam Cotten stated that it would cost the department “about $1.3 million a year for at least 5 years.” Most of the departmental estimates are personal services, which are usually ongoing rather than one-time costs.

In addition, Department of Transportation’s estimate of nearly $1 million is not included in the document found on the Division of Elections website, and DOT’s estimate includes a caveat: “This figure does not consider the services and commodities costs of each [newly hired employee] . . . e.g., office furniture, phone service, IT service, computers and other office supplies.”

Further, DOT’s White stated that the DOT estimate does not include the cost of project delays that would be caused by the initiative. Another undefined cost is that of the additional environmental assessments and environmental impact statements. DFG Regional Supervisor Ron Benkert explained that the revised two-step public notice process would also cause slower movement for permit applications.

Senator Giessel pointed out that delays caused by these new requirements could place grant funding from the federal government in jeopardy.

The state would not be the only entity bearing additional costs. DFG would be required to conduct site specific determinations and extensive data collection to prove anadromous fish are not present, an expense borne by the project applicants for both new and amended permits.

No Prudhoe Bay, no Donlin Mine, no ANWR?
Chairman Meyer asked the Department of Law if the Prudhoe Bay and Kuparuk oilfields would have been able to come online if Ballot Measure 1 had been in effect at the time. Grace replied that, “the affidavits that the state got from our agency officials said that Prudhoe Bay would not have been built with this initiative [emphasis added].”

Other statements were made by presenters which indicated that DFG could be precluded from issuing permits for major highways (including maintenance) and the proposed Donlin mine.

Andy Mack, DNR Commissioner stated that he has “serious concerns” about the ability to get the permits needed to explore and develop ANWR’s 1002 area under this ballot measure.

Red Dog Mine now operates in Alaska’s Northwest Arctic Borough. DOL’s Grace stated that the mine is currently looking at creating a “new tailings facility” and since that project would require a new or amended permit, it “would not be grandfathered under this bill.”

DFG’s Benkert stated that Red Dog Creek was a sterile creek during the construction of the Red Dog Mine. In answer to a question posed by Senator Giessel, he confirmed that Red Dog Creek currently supports a strong run of fish due to the mine’s perpetual water treatment. He disclosed that Red Dog Creek could not support fish populations prior to the Red Dog Mine.

Current Permits Could Be Revoked
Larry Hartig, DEC Commissioner explained that water discharge permits come up for renewal every five years and if Ballot Measure 1 passes, when current permits come up for renewal, they would be subject to the new requirements.

DFG’s Benkert stated that most of their permits are for two years and that amendments and renewals must qualify under the initiative language if it passes.

Reconsideration/Appeals Process
Senator Cathy Giessel posed a question to the Department of Law about who can initiate an appeal of a permit, as the ballot measure language uses the phrase “any interested person.” DOL’s Grace stated that “any interested person” is not defined in the bill and that the Alaska Supreme Court is broad-minded. This seems to suggest that one would not have to be an Alaska resident to appeal a permit.

Off To Court We Go
Senator Coghill asked questions several times during the hearing about various ambiguous terms and phrases in the initiative, but presenters were not able to provide much clarification. He made the point toward the end of the meeting that it appears as if the courts would end up having to define many aspects of the ballot measure. Naturally, this will drive up costs to the state and to permit applicants.

Reference
The full Senate State Affairs meeting minutes and documents can be viewed here.