Legislature(1993 - 1994)
02/11/1994 09:15 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 238: An Act establishing a procedure for review of proposed projects under the Alaska coastal management program, and relating to petitions for compliance with and enforcement of district coastal management programs under that program and to the disposition of those petitions. Elizabeth Kerttula, Assistant Attorney General- General Civil Section, Juneau office, Department of Law, and Dr. Paul Rusanowski, Division Director, Division of Governmental Coordination, Office of the Governor testified in support of SB 238. Amendments 1 and 2 were ADOPTED. SB 238 as amended was REPORTED OUT of committee with a "do pass" and a zero fiscal note for the Office of the Governor. SENATE BILL NO. 238: An Act establishing a procedure for review of proposed projects under the Alaska coastal management program, and relating to petitions for compliance with and enforcement of district coastal management programs under that program and to the disposition of those petitions. CO-CHAIR PEARCE announced that SB 238 was before the committee. She said that the Coastal Policy Council coordinated state agencies and local coastal districts in reviewing and issuing state permits for proposed development projects effecting natural resources in our coastal zones. SB 238 clarified when and how certain parties could petition the Coastal Policy Council during a Coastal Zone Management Program consistency review. SB 238 corrected a problem that occurred when a petition was brought before the Council after a final Commissioner level decision on a consistency review had been made. Under current Coastal Management Program statutes and regulations, the Resource Commissioners of the departments cannot delegate their responsibility to participate in the elevation of a consistency determination nor may they delegate their authority to decide a petition in a final consistency determination. However, as noted in the informal AG's opinion that was included in the files, the Commissioners also cannot sit in both capacities. The bill would add clarification to the statute to insure that complaints were heard and addressed in a timely manner. She thought the bill insured that citizens, agencies and effected projects would have a voice in the development policies in our coastal areas. The bill was proposed as a result of intensive collaboration between the coastal policy council subcommittee, the Department of Law, Co-chair Pearce, and other interested parties. Co-chair Pearce invited Dr. Paul Rusanowski, Division Director, Division of Governmental Coordination, Office of the Governor, and Elizabeth Kerttula, Assistant Attorney General-General Civil Section, Juneau office, Department of Law, to join the members at the table. DR. PAUL RUSANOWSKI said that SB 238 addressed a problem in the Coastal Zone Management Program as Co-chair Pearce had described in that the elevation process for project reviews depended upon an elevation review by the directors of the resource agencies, and, if unresolved, by the commissioners of the respective resource agencies. The project was also subject to petition to the Coastal Policy Council. This had created a due process problem that had been brought to light by the Attorney General opinion and required a fix. In addressing what appropriate fix was necessary, the Coastal Policy Council endorsed a statutory fix after a very long consensus building process with a subcommittee and working group. The fix proposed was a major improvement to the overall Coastal Zone Management Program and to the dispute resolution process that was built into it. In the proposed amendment, a project that was undergoing consistency review in the Coastal Zone Management Program would be subject to a consistency review at the regional level which was the first stage of review. If it was challenged by one of the parties withstanding, it would go to the director level elevation and ultimately to a commissioner level and then on to court. A crossover would not be allowed of that project review to the Coastal Policy Council. In lieu of that crossover petition process to the Coastal Policy Council, an alternative petition process had been incorporated in the review at either the regional consistency review or the director level review. Any of the parties participating in the consistency review or a member of the public who had commented on that project during the consistency review, could petition to the Coastal Policy Council to insure that their comments that had been submitted were fairly considered in the consistency review process by the agency conducting the review. The Coastal Policy Council would review that petition and make a determination which comments were fairly considered. If, in the opinion of the Coastal Policy Council, such action had been taken, the petition would be dismissed. If the Council thought a hard look had not been taken, they would remand the consistency review back to the director or regional level to reconsider those comments in the process and render a new consistency determination. This considerably expanded the participatory role of the public in the process and insured that the process conducted by the agencies did what the legislation originally intended and was an improvement in the program. The proposal had a negative fiscal note. He went on to explain how the savings to the administration was accomplished. At present, the program was subject to the Alaska Procedures Act (APA) which required a formal hearing process for any petitions. SB 238 removed the requirement for APA and allowed an informal hearing process to take place. Based on past petitions, it was estimated that the cost of conducting a hearing was roughly $30,000 for each petition received. Historically, one petition was received a year. However, the bill also mandated that the public be informed of all consistency reviews being conducted. It would be necessary to expand some of the public notice activities presently being conducted in the program. The best estimate of projects that were not subject to public notice was approximately 400 out of 1500 to 2000 projects that would move through the consistency review process. These were approximately equally divided between ADF&G, Environmental Coordination, and DNR. The bill also incorporated the ability of the Coastal Policy Council to set the level of public notice to match the level of project impact within the coastal zone. It was not necessary to provide a maximum level of public notice and distribution of information on every single review. As a consequence, it was estimated that roughly 200 of the 400 projects that were not public noticed now, would require a public notice in a newspaper format. That would impact the present program roughly by $20,000. The remaining 200 projects could be covered by district notification, posting, radio announcements and other forms of public notification. That impact was estimated to be about $2,000. The increase of public notice cost would be approximately $22,000 over present activities but by moving out of the APA process and allowing informal hearings, it was expected to save $30,000, making a net savings of $8,000. Dr. Rusanowski said he had two amendments to speak to. In answer to Senator Rieger, Dr. Rusanowski said the Alaska Coastal Policy Council was the policy body within the Coastal Zone Management Program for the state of Alaska. The Division of Governmental Coordination supported that group and conducted the consistency reviews on behalf of the Coastal Policy Council. In conducting those reviews, there was a petition process built into the program that allowed an aggrieved party to petition to the Coastal Policy Council for actions that were inconsistent with the Coastal Zone Management Program. Such petitions were not limited to policy matters only but could cover any aspect of the Coastal Zone Management Program. The Coastal Policy Council was the board that made the decision as to whether it was or was not consistent and what change was needed. It authorized all district programs that were in place. In order for a program to be consistent, it must be consistent with the program and the enforceable policies, district specific. When a consistency review was conducted, it was the consideration of adopting a program (a coastal district program, an area meriting special attention, some special management unit), or a project proposed by an individual, the federal government or the state that was being conducted within a district or within the coastal zone of the state of Alaska. Dr. Rusanowski said the program was hierarchial. There was a federal Coastal Zone Management Program in place. The state of Alaska had an approved Coastal Zone Management Program under this federal umbrella that was state wide for the entire coast line of Alaska. Underneath that level, districts or coastal resource service areas could be formed. Those districts had their own programs that must be consistent with state programs. In answer to Senator Rieger, Dr. Rusanowski said the Division of Governmental Coordination was staff to the Coastal Policy Council. The program was originally written by the legislature in 1977. If a district was formed to develop a coastal management program, that district must get the approval of the Coastal Policy Council before their district program could be adopted. The Coastal Policy Council made the determination that the plan as proposed was or was not consistent with the state program and submitted it to the federal program for their review. Dr. Rusanowski said there were seven state members (representatives of the various resource agencies) and nine public members (different regions throughout the state) that made up the Coastal Policy Council. BETH KERTTULA said that in 1997, when Alaska created its Coastal Management Program, it created the Coastal Policy Council to be the body, or overseer of the whole program. It was the authority body in place in the statutes. It also created the avenue for the petition, so if a coastal district citizen did not like a project or an activity that was taking place, they could petition to the Alaska Coastal Policy Council. This was the process until 1984, and there were no regulations around the petition process. Governor Sheffield did a permit reform. Then a body within the Division of Governmental Coordination was created to do reviews of all the permits that required consistency with coastal management programs. She pointed out that the permit process along side the regulation system created due process problems. It made the Commissioner the final judge. She went on to explain the effect of SB 238. Senator Rieger pointed out the Commissioner would still be involved twice. Ms. Kerttula agreed but said it was a different decision. She and Senator Rieger discussed the definition of a "hard look." In answer to Senator Kerttula, Dr. Rusanowski said the state members were the Director of Office of Management & Budget or an alternate, the Commissioners of Commerce & Economic Development, Fish & Game, Community & Regional Affairs, Environmental Conservation, Natural Resources, and Transportation & Public Facilities. He said they had to sit and could not appoint alternates. Co-chair Pearce added that the nine public members were appointed by the Governor from a list of nominees from each district. Co-chair Pearce gave some history to the problems that had been on-going for years. In answer to Senator Kerttula, Dr. Rusanowski said the public members had to be elected officials of some kind. Senator Kerttula MOVED amendment 1. Dr. Rusanowski explained that amendment 1 addressed a concern that was expressed that a reasonable period of time was an appropriate designation but too vague to allow speedy resolution. It had not been resolved in the consensus process and this amendment inserted the words "But not more than 30 days shall elapse between the filing of the petition and the decision of the Council" on page 4, line 6. In answer to Senator Rieger, Dr. Rusanowski felt that 30 days was reasonable. No objection being heard, amendment 1 was ADOPTED. End SFC-94 #23, Side 1 Begin SFC-94 #23, Side 2 Senator Kerttula MOVED amendment 2. Dr. Rusanowski explained amendment 2 was a technical amendment. He said anyone could petition on a policy issue to the Coastal Policy Council. In the petition process of taking a "hard look" it was restricted to the public that had commented on the project during the public comment period. Because these two different groups occurred, both need to be referenced and that was what amendment 2 did. Discussion was had by Senator Rieger and Dr. Rusanowski regarding amendment 2 and the parties involved. No further objection being heard, amendment 2 was ADOPTED. Co-chair Pearce announced the teleconference part of the meeting would begin and introduced Steve Porter in Anchorage. STEVE PORTER, Arco Alaska, testified via teleconference from Anchorage in support of SB 238 as amended. He said he was a member of the advisory committee, and the bill had been under review for at least four years. He felt the bill was a consensus document most people could support. WILLIE GOODWIN, former member of the Coastal Policy Council, testified via teleconference from Kotzebue. He said he was one of the strongest advocates for the ordinary citizen in this process. He pointed out several of his concerns that he had raised previously at the Council level. First, this bill took away the public assurance that there was one final appeal process before going to court and that was through the Coastal Policy Council. The other point was when a concern was "fairly considered" what guarantee would there be that it would be truly considered before a determination was made. Finally, every administration had different views on resource management, and with SB 238, the final decision would be in the administration's hands. He had concerns about certain Commissioners in this administration making those final determinations because of their views. And if the appeal process was taken away, he did not see much chance for anything to change. In regard to due process, that had never been challenged. He did not see the reason to change the way it was at present. He was afraid the ordinary citizen would be given less chance to be heard. Senator Kerttula MOVED CSSB 238(FIN) as amended from committee with individual recommendations. No objection being heard, it was REPORTED OUT with individual recommendations, and a zero fiscal note for the Office of the Governor showing a revenue of $(7.9). Co-chairs Pearce and Frank, Senators Jacko, and Kerttula signed "do pass." Senators Rieger and Sharp signed "no recommendation." ADJOURNMENT The meeting was adjourned at approximately 10:30 a.m.
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