Mallott, 090617 AKAGO, AGO JU2017200457

Case DateSeptember 06, 2017
CourtAlaska
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...

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