The Honorable Byron Mallott
AGO JU2017200457
No. JU2017200457
Alaska Attorney General Opinions
September 6, 2017
The
Honorable Byron Mallott
Lieutenant
Governor
P.O.
Box 110015
Juneau,
Alaska 99811-0015
Re:
17FSH2 Ballot Measure Application Review
Dear
Lieutenant Governor Mallott:
You
asked us to review an application for an initiative entitled:
“An Act providing for protection of wild salmon and
fish and wildlife habitat” (17FSH2). Because the
application does not comply with the specific constitutional
and statutory provisions governing the initiative process, we
recommend that you decline to certify the application.
I.
The proposed initiative bill.
The
bill proposed by this initiative would amend, repeal, and
reenact various provisions of AS 16.05 to protect water
quality in anadromous fish habitat from the adverse effects
of development and human activity. The bill is fourteen
sections long, and provides as follows:
Section
1 would add a statement of fish habitat policy to
the uncodified law. The statement provides that because wild
salmon are critically important to Alaska’s
communities, it is state policy to: ensure sustainable
fisheries and fish and wildlife habitat; protect water
resources and anadromous fish habitat; ensure that
development in these habitats meets enforceable standards;
and ensure the State meets its constitutional obligation to
protect Alaska’s fisheries.
Section
2 would create new fish and wildlife
habitat-protection standards under AS 16.05 and require the
Commissioner of the Department of Fish and Game
(Commissioner) to ensure the proper protection of fish and
wildlife, including protecting anadromous fish habitat from
significant adverse effects. To that end, this section would
require the Commissioner to maintain certain standards when
issuing permits for development in anadromous fish habitat
with respect to: water quality and temperature; stream flow;
species passage; habitat-dependent connections; habitat bank
and bed stability; aquatic diversity; and adjacent riparian
areas. This section would also allow the Commissioner to
adopt regulations to implement these standards.
Section
3 would repeal and reenact existing AS 16.05.871.
This section would require a person to get an anadromous fish
habitat permit “before initiating any activity that may
use, divert, obstruct, pollute, disturb or otherwise alter
anadromous fish habitat.” The section would further
allow the Commissioner to specify in regulation activities
that do not require an anadromous fish habitat permit,
provided the activity has only a de minimis effect
on such habitat. This section contains a presumption and
definition of what constitutes “anadromous fish
habitat,” but allows the Commissioner to specify it
further in regulation, and make site-specific exemptions to
the presumption.
Section
4 would create a new application process for
anadromous-fish-habitat permits under AS 16.05. The
Commissioner would create the application form and collect
from applicants all information necessary to assess a
proposed activity’s effects on anadromous fish habitat,
and, in consultation with the applicant, determine whether
the proposed activity has the potential to cause significant
adverse effects on anadromous fish habitat, and issue a
permit accordingly with public notice of his decision.
Section
5 adds a new section to AS 16.05 requiring the
Commissioner to “find the potential for significant
adverse effects” where the activity may, alone or along
with other factors: impair or degrade protected habitat
characteristics; interfere with spawning, rearing, or
migration of anadromous fish; increase mortality of
anadromous fish; reduce aquatic diversity, productivity, or
stability; or impair other criteria set in regulation. Under
this section, the Commissioner must find that the proposed
activity will cause substantial damage to anadromous fish and
wildlife species if the habitat “will be adversely
affected such that it will not likely recover or be restored
within a reasonable period to a level that sustains the water
body’s, or portion of the water body’s”
fish and wildlife species. In making that determination, the
Commissioner must account for various factors that impact the
adversely affected species and habitat.
Section
6 adds new sections to AS 16.05 that describe
timeframes, public notice and bonding requirements, and...