Legislature(2005 - 2006)BUTROVICH 205

04/06/2005 03:30 PM RESOURCES

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03:39:01 PM Start
03:40:02 PM SB102
04:44:56 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
-- Testimony <Invitation Only> --
               SB 102-COASTAL MANAGEMENT PROGRAMS                                                                           
CHAIR   THOMAS  WAGONER   announced   SB  102   to   be  up   for                                                               
DOUG LETCH, staff to Senator  Gary Stevens, explained that SB 102                                                               
will extend  the deadline for  Alaska Coastal  Management Program                                                               
(ACMP) revisions.  The program is a  partnership between federal,                                                               
state  and  local  governments  that  provides  state  and  local                                                               
governments a  voice in the  federal decision on  coastal issues.                                                               
Alaskans  have used  it since  1977 and  it channels  millions of                                                               
dollars  in  federal grant  money  to  the  state to  help  guide                                                               
coastal development.                                                                                                            
     Without this program, state and local governments will                                                                     
      lose their ability to control development on federal                                                                      
     land in the Outer  Continental Shelf. Additionally, the                                                                    
     state   will  lose   millions  in   coastal  management                                                                    
     planning money. Two years  ago, the legislature enacted                                                                    
     HB  191  that  substantial revised  the  state  coastal                                                                    
     program. As a  result, the federal office  of Ocean and                                                                    
     Coastal  Resource Management  (OCRM) must  approve this                                                                    
     revised program.  Since then, OCRM has  determined that                                                                    
     additional revisions are necessary  before it can grant                                                                    
     approval.  The  2003  legislation also  included  state                                                                    
     deadlines for revisions to  local coastal programs. The                                                                    
     coastal   districts  are   attempting  to   follow  the                                                                    
     statutory directive  to revise their programs  in order                                                                    
     to  meet  those  new requirements.  However,  OCRM  has                                                                    
     identified problems with the  state's guidance to local                                                                    
     districts  regarding the  scope  and  contour of  their                                                                    
     program. Our  districts are asking  for some  more time                                                                    
     to cope with  these changes and what may  come down the                                                                    
     Because  of OCRM's  decisions, the  state will  have to                                                                    
     revise  their  regulatory   guidelines  for  the  local                                                                    
     districts before  the new program  can be  approved, if                                                                    
     the  state  chooses to  go  that  way. In  turn,  local                                                                    
     districts will have to rerevise  their programs to meet                                                                    
     new guidelines.  So, it's become kind  of a complicated                                                                    
     thing for our districts.                                                                                                   
     What  SB  102  will  do  is  extend  the  deadline  for                                                                    
     district coastal  program revisions and will  annul the                                                                    
     existing program  upon federal approval of  the state's                                                                    
     program. We  believe that the extension  will ensure an                                                                    
     orderly and  efficient transition  to whatever  the new                                                                    
     program may be. When this  bill was heard previously by                                                                    
     the Community  and Regional Affairs Committee,  the one                                                                    
     thing  that we  heard overwhelmingly  was that  coastal                                                                    
     district  managers needed  more  time to  come up  with                                                                    
     revised plans.                                                                                                             
RANDY BATES,  Deputy Director, Office  of Project  Management and                                                               
Permitting (OPMP),  Department of  Natural Resources  (DNR), said                                                               
that  this office  is  the  lead agency  for  the Alaska  Coastal                                                               
Management  Program. He  said he  had a  productive meeting  last                                                               
week  with  officials  of  the state  and  the  coastal  district                                                               
representatives.  They talked  about  the  state's commitment  to                                                               
pursing  the federal  approval of  the Alaska  Coastal Management                                                               
Program (ACMP)  and listened to  requests from the  districts for                                                               
additional time. He offered to answer the committee's questions.                                                                
3:44:58 PM                                                                                                                    
SENATOR GRETCHEN  GUESS asked if  the administration  supports SB
MR. BATES replied it does not support SB 102.                                                                                   
SENATOR GUESS asked  why in general he has a  problem with giving                                                               
districts more time to finish their plans.                                                                                      
MR.  BATES  replied  that  the  districts  have  been  given  the                                                               
necessary information  and timeline to  get the job done  by July                                                               
1.  Also, there  is  a  fiscal note,  which  causes concern.  The                                                               
administration  is   in  ongoing  negotiations  with   OCRM,  the                                                               
governing  body  of the  federal  coastal  zone program,  and  it                                                               
doesn't  seem   appropriate  to  extend  deadlines   while  still                                                               
fighting for  approval of a  federal program. "To give  a federal                                                               
oversight agency  like this additional  time to push back  on the                                                               
state and  mandate a  program that  does not  work for  our state                                                               
doesn't seem prudent."                                                                                                          
3:48:36 PM                                                                                                                    
GABRIELLE LAROCHE, LaRoche and Associates,  said she is currently                                                               
working with  nine coastal districts  around the  state including                                                               
the Aleutians West Coastal Resource  Service Area to revise their                                                               
plans. Although  she understands the administration  is concerned                                                               
that an  extension may compromise  its negotiation  position with                                                               
the  federal  approving  agency,  she  suggested  a  scaled  back                                                               
extension that is not tied to the OCRM approval of January 1.                                                                   
3:50:02 PM                                                                                                                    
She said  all her clients  will meet  the July 1,  2005 deadline,                                                               
but more time would significantly  improve the public process and                                                               
allow  the  state   the  time  it  needs   to  resolve  remaining                                                               
differences with OCRM.                                                                                                          
     One  of the  remaining  issues of  most  concern is  of                                                                    
     federal  consistency for  the requirement  that federal                                                                    
     permits and actions be conducted  to the maximum extent                                                                    
     practicable with  the state plan  and local  plans. How                                                                    
     this issue is resolved between  OCRM and the state does                                                                    
     have  bearing on  the  manner in  which  the plans  are                                                                    
For example,  she is currently  working on a revision  with Sitka                                                               
on public  use management plan  that is a co-management  plan for                                                               
federal lands and adjacent tidelands.  That plan has been drafted                                                               
to  comply with  the new  state laws,  but she  did not  think it                                                               
would  meet   the  requirements  of  the   federal  Coastal  Zone                                                               
Management Act.  How the issue  is resolved between OCRM  and the                                                               
state will require additional amendments.  She said it would make                                                               
sense to  give them time  to resolve this issue  before requiring                                                               
the districts to submit the plans.                                                                                              
The second issue is that  the public process is extremely limited                                                               
and only a  21-day covered review is required by  law. This means                                                               
that many  districts are putting  forth plans without  having had                                                               
adequate  funds to  work with  cities and  villages within  their                                                               
borough and within  the coastal resource service  area. With more                                                               
time,  this outreach  could be  conducted and  a plan  could more                                                               
accurately  reflect issues  of local  concern. Since  HB 191  was                                                               
very focused on issues of local  concern, this was a major shift.                                                               
With additional  time, the  plans would  much better  reflect the                                                               
legislative intent.                                                                                                             
3:52:58 PM                                                                                                                    
TOM  LOHMAN, North  Slope Borough,  said he  has worked  with the                                                               
coastal program  for 18  years and strongly  supports SB  102. He                                                               
was   concerned about the two  timelines involving a July  1 date                                                               
imposed by  HB 191 a  couple of years ago.  The first one  is the                                                               
date by  which revised programs have  to be submitted to  DNR and                                                               
the second is  the date by which the state  has to resolve issues                                                               
with OCRM.  He doesn't understand  why DNR continues to  link the                                                               
deadlines  of  those  two  issues.   All  coastal  districts  are                                                               
committed  to producing  programs  by the  July  1 deadline.  The                                                               
North  Slope  Borough  has  not been  part  of  the  negotiations                                                               
between DNR and OCRM, but if  they do not reach resolution of the                                                               
outstanding  concerns  and  the  program goes  away,  that  would                                                               
dramatically not be in the best interests of the state.                                                                         
MR.  LOHMAN said  the  reason  the districts  want  more time  is                                                               
because they want  to produce decent products and  they only want                                                               
to do it  once. The deadline was ambitious to  begin with and was                                                               
premised on the  fact that changes were considered  to be routine                                                               
rather  than a  full  amendment. The  problem  was compounded  by                                                               
DNR's acknowledged  significant lack of staff  for several months                                                               
after the program was moved from the Governor's office to DNR.                                                                  
     The  problem  was further  compounded  by  the way  the                                                                    
     consultants were hired to draft  the initial version of                                                                    
     the regulations  that are now  at issue.  The districts                                                                    
     have said  that there  has been  a significant  lack of                                                                    
     clarity and guidance from  DNR regarding their allotted                                                                    
     district plans  - what could  be and should  be written                                                                    
     into those plans  - what policies could  be approved by                                                                    
     DNR  within the  constraints  of 191.  We believe,  the                                                                    
     districts, that  not only has there  been a significant                                                                    
     lack  of clarity,  but the  trend has  been with  every                                                                    
     subsequent clarification of  guidance of interpretation                                                                    
     that we've  gotten, that we  can do less and  less with                                                                    
     out local district plans  than was originally testified                                                                    
     to   when  HB   191   was  being   considered  by   the                                                                    
     legislature. We have had to  continually go back to the                                                                    
     drawing  board  to  figure out  what  they  have  left.                                                                    
     That's really  the attitude I think  the districts have                                                                    
     -  is with  each successive  interpretation by  DNR, we                                                                    
     try to figure out what we have left.                                                                                       
3:58:56 PM                                                                                                                    
Districts have  had to truncate  normal planning  procedures. The                                                               
public outreach  process has been  severely abbreviated.  He said                                                               
the  North  Slope  Borough's  initial plan  took  five  years  to                                                               
develop. If  intent of HB  191 was to streamline  development and                                                               
enhance  opportunities around  the  coastal areas  of the  state,                                                               
this  will likely  cause  the opposite  because  his district  is                                                               
going to submit a plan that is not complete.                                                                                    
He  emphasized that  his borough's  plan has  had an  abbreviated                                                               
public  review and  was not  preceded  by visits  to villages  or                                                               
substantive sit-downs  with the  oil and  gas industry.  Since it                                                               
must be  reviewed in such  a hurry,  he must advise  the planning                                                               
commission  to err  on  the  side of  being  more restrictive  to                                                               
protect  the  resources  and  subsistence  opportunities  on  the                                                               
Slope. It is  unfair to the public  to put out a  plan that, "We,                                                               
ourselves, do not believe in and is incomplete."                                                                                
4:01:09 PM                                                                                                                    
MR. LOHMAN said submitting plans  early would force confrontation                                                               
with oil and  gas companies on the Slope. Part  of the reason the                                                               
original plan  took five years  is because  of the give  and take                                                               
with the industry.                                                                                                              
4:01:39 PM                                                                                                                    
DNR  has  said the  districts  can  continue  to work  after  the                                                               
deadline,  but the  problem with  that is  every time  a district                                                               
that has  already submitted a plan  sits down to figure  out what                                                               
regulations  mean, it  loses enforceable  policies  at the  local                                                               
level, which is counterproductive.                                                                                              
4:02:25 PM                                                                                                                    
MR. LOHMAN  said another  important question  is where  the money                                                               
will come from  if the revision time is  extended. Federal grants                                                               
as well as other financial resources  have been used up and other                                                               
upcoming federal  grants will most  certainly be  insufficient to                                                               
implement  the program  and continue  to  revise it  at the  same                                                               
4:03:20 PM                                                                                                                    
People  will be  shocked to  see how  little of  their plans  are                                                               
left. Issues  need to be worked  out in front of  the public with                                                               
all the cards on the table  - with industry and everyone. That is                                                               
not possible with the July 1 deadline.                                                                                          
4:06:06 PM                                                                                                                    
MR. LOHMAN  repeated that he  did not  see why the  two deadlines                                                               
are  linked.  Existing  state  standards expire  on  July  1  and                                                               
preliminary approval is needed from  OCRM or the program is lost.                                                               
This, to  him, seemed  independent of the  need for  districts to                                                               
have more time  to revise their plans and how  that resolution is                                                               
reached will  decide, in some ways,  what can be included  in the                                                               
plans. He figured  if OCRM issues are going to  get resolved soon                                                               
anyhow, why not give the districts  the extension they need to do                                                               
the best job they can.                                                                                                          
4:08:14 PM                                                                                                                    
CHAIR WAGONER said  that districts have had from  2003 until June                                                               
2005 to work on the plans.                                                                                                      
MR. LOHMAN replied  not exactly. He said the  regulations are the                                                               
blueprint the districts  are working off of. There  was a several                                                               
month  delay  before  DNR,  that   was  understaffed,  could  put                                                               
personnel  in place  and before  contractors  were hired  (around                                                               
October or  November of  2003) to put  regulations in  place that                                                               
communities needed for revising their plans.                                                                                    
     There  is  very  little  in  [HB]  191  that  gives  us                                                                    
     direction in  terms of the  nuts and bolts  of revising                                                                    
     our program. We  had to wait for  the regulations. That                                                                    
     process was extremely protracted.                                                                                          
4:11:14 PM                                                                                                                    
MARV   SMITH,  Community   Development   Coordinator,  Lake   and                                                               
Peninsula  Borough,  supported SB  102.  He  echoed Mr.  Lohman's                                                               
concerns saying the borough will submit  its plan on time, but is                                                               
not  really proud  of  it.  It needs  a  lot  more work  provided                                                               
funding is available.                                                                                                           
4:12:58 PM                                                                                                                    
He commented that this is a  state's right issue, but before that                                                               
it is a community rights issue.                                                                                                 
4:15:43 PM                                                                                                                    
SENATOR ELTON joined the committee.                                                                                             
MR. SMITH  said his  district is  in total  support of  a federal                                                               
program with state participation,  otherwise there wouldn't be an                                                               
ACMP.  The  State  of  Alaska  has 52  percent  of  the  nation's                                                               
coastline and  there are about 300  villages along it. It  is not                                                               
fair to  the rest  of the  nation if  Alaska is  not part  of the                                                               
federal program.                                                                                                                
4:18:16 PM                                                                                                                    
SENATOR SEEKINS joined the committee.                                                                                           
MR. SMITH  concluded by urging the  committee to pass SB  102 and                                                               
give the  districts time to work  the plans out and  get them all                                                               
approved. Six months would allow  his district to get through the                                                               
subsistence season. He  reminded them that in 10 years  all 27 of                                                               
the plans  would come due again.  If districts have to  come back                                                               
in  two years  to  fix  their plans,  that  would  be a  planning                                                               
4:20:08 PM                                                                                                                    
CHAIR WAGONER thanked him for his testimony.                                                                                    
4:20:26 PM                                                                                                                    
SENATOR  GUESS  asked  Mr. Bates  to  describe  the  relationship                                                               
between the two deadlines.                                                                                                      
MR. BATES referenced a timeline chart  with a deadline of July 1,                                                               
2004  for  DNR to  rewrite  three  chapters of  regulations  that                                                               
implement the  ACMP. Those went in  place on July 1,  2004. Then,                                                               
HB 191 gave the districts one  year from the time the regulations                                                               
went in effect  to write their plan  revisions, which established                                                               
July 1, 2005 as their deadline.                                                                                                 
Another  transition  provision  in  HB  191  sunset  the  coastal                                                               
district  standards  on  July  1,   2005.  Those  are  the  state                                                               
standards that are  used within a consistency  review process for                                                               
project compliance.                                                                                                             
4:23:36 PM                                                                                                                    
SENATOR  GUESS said  it  seems  as if  the  administration is  in                                                               
negotiation with OCRM.                                                                                                          
MR. BATES replied that is correct.                                                                                              
SENATOR  GUESS   said  she  is   still  missing   the  connecting                                                               
relationship  between those  negotiations and  the district  plan                                                               
MR.  BATES  responded  that  he   submitted  an  amended  coastal                                                               
program,  which   included  the  statutes  and   regulations,  in                                                               
December  2004. OCRM  came back  on January  28th with  a 49-page                                                               
letter  detailing numerous  "failures" or  "program approvability                                                               
issues"  that  needed  to  be  addressed.  On  February  23,  the                                                               
Governor issued a very strong letter that said:                                                                                 
     We  believe we've  developed a  program that  works for                                                                    
     Alaska and is  approvable and OCRM needs  to move their                                                                    
     position  and  adhere  to the  intent  of  the  federal                                                                    
     program act and work and  assist the state in preparing                                                                    
     a program that works for our management needs.                                                                             
     In response to that letter,  OCRM came back on March 25                                                                    
     and whittled those  49 pages down to  four basic issues                                                                    
     - three basic  issues, I would say, for  the most part.                                                                    
     Because  the one  issue  that has  been  brought up  by                                                                    
     other  testimony  here  is the  scope  and  content  of                                                                    
     coastal  district  plans.   In  fact,  OCRM  determined                                                                    
     within  their March  25   letter  that the  information                                                                    
     included in  the December 16 submission  was sufficient                                                                    
     - did describe in  necessary detail the information for                                                                    
     coastal  districts, their  participation  and how  they                                                                    
     can write district policies. So,  we have no regulatory                                                                    
     revisions  to make  regarding the  scope or  content of                                                                    
     district policies.                                                                                                         
4:25:58 PM                                                                                                                    
The  department continues  to negotiate  with OCRM  and hopes  to                                                               
detail a  response to the  outstanding issues within a  couple of                                                               
     As  part of  that, we  don't  feel it  is necessary  to                                                                    
     extend the  coastal district deadlines. We  expect OCRM                                                                    
     to  respond to  us  following  our letter...and  we're,                                                                    
     quite honestly,  hopeful that they  will come  back and                                                                    
     give us  the okay or  the approval sign to  keep moving                                                                    
     forward and pursue the changes  that we're proposing to                                                                    
     address their approvability issues.                                                                                        
4:26:47 PM                                                                                                                    
SENATOR GUESS asked what the four issues are.                                                                                   
MR.  BATES replied  in general  they include  the application  of                                                               
district policies in  the designated areas -  "the effects test."                                                               
OCRM's  letter  suggested  the projects  needed  some  regulatory                                                               
revisions. The  second issue is compliance  with local government                                                               
regulations  if the  district plan  revisions go  into effect  in                                                               
2006  and the  state's  standards  are sunset  on  July 1,  2005.                                                               
Third,  OCRM wants  more concise  plans from  the districts.  The                                                               
fourth  issue  is  the habitats  policy,  which  state  standards                                                               
address,  but  OCRM   wants  them  to  address   impacts  to  the                                                               
ecological functions of habitat.                                                                                                
4:29:28 PM                                                                                                                    
He emphasized that regulatory changes  to accommodate changes are                                                               
unrelated to how districts craft their policies.                                                                                
4:30:16 PM                                                                                                                    
SENATOR GUESS asked him if he  meant the four issues don't impact                                                               
the plans, but will impact the implementation of them.                                                                          
MR. BATES replied yes that was his summary.                                                                                     
4:30:49 PM                                                                                                                    
SENATOR GUESS asked why the  administration opposed extending the                                                               
deadline. If  people have  a better public  process for  a better                                                               
quality plan, what  is the downside on the public  policy side in                                                               
giving communities more time?                                                                                                   
MR. BATES  responded by pointing  out that they are  dealing with                                                               
the CS SB 102.                                                                                                                  
     The  language  within   that  committee  substitute  is                                                                    
     geared off  of the approval  of NOAA and that  the year                                                                    
     that  the districts  are asking  for is  year from  the                                                                    
     date OCRM approves the Coastal Management Program.                                                                         
     When  we get  to that  fact...we're talking  about 2007                                                                    
     when  districts are  to submit  their  plans. We  don't                                                                    
     expect NOAA to complete NEPA  before at least this next                                                                    
     Christmas, if not several months after that."                                                                              
MR.  BATES said  the plans  need to  be done  sooner rather  than                                                               
later and  the average  age of  the coastal  district plan  is 14                                                               
years. The  plans are out of  date; there was a  need for reform.                                                               
That is part  of what HB 191  did. The goal is  to streamline the                                                               
program and bring some objectivity to it.                                                                                       
4:33:11 PM                                                                                                                    
SENATOR GUESS  asked what he  thought about extending  the review                                                               
period for  six months  and decoupling it  from the  approval and                                                               
the deadline.                                                                                                                   
MR. BATES replied he would look at that.                                                                                        
4:33:39 PM                                                                                                                    
SENATOR ELTON asked why a one-year period was wrong.                                                                            
MR. BATES replied that the state  still believes the plan that it                                                               
put together is approvable with minor regulatory changes.                                                                       
4:35:08 PM                                                                                                                    
SENATOR ELTON said the problem  for the coastal districts is that                                                               
they don't know what will be  approved. He and the districts have                                                               
heard reassurances before from the department before.                                                                           
MR. BATES said he believes he  has an approvable program and will                                                               
respond to  OCRM with  it in a  few days. He  looks forward  to a                                                               
quick response.                                                                                                                 
SENATOR ELTON noted for the record  that he has heard that before                                                               
and it hasn't happened.                                                                                                         
4:36:39 PM                                                                                                                    
CHAIR WAGONER  asked if  coastal districts  said they  could have                                                               
their plans in by July 1.                                                                                                       
MR. BATES  replied that is true  and his office has  been working                                                               
very hard on reviewing those plans  that have already come in for                                                               
public review.                                                                                                                  
CHAIR WAGONER asked if several  districts said if they don't have                                                               
their plans  in by July 1,  they would not receive  the necessary                                                               
funds to update their plan.                                                                                                     
MR. BATES replied that he heard that, too.                                                                                      
CHAIR WAGONER said that confused him.                                                                                           
MR. BATES said  that HB 191 mandated all 33  coastal districts to                                                               
review and  revise their  coastal plans and  submit them  for DNR                                                               
review  and approval  in  compliance with  the  new statutes  and                                                               
regulations that  it promulgated. Twenty-seven of  the 33 coastal                                                               
districts are  complying with that.  As part of their  efforts to                                                               
revise  their plans,  they have  been provided  with $900,000  in                                                               
planning monies.  If a district  fails to get its  plan revisions                                                               
in on  time, by July 1,  2005, it will lose  priority processing.                                                               
He only  has enough  staff available  to review  the 27  or fewer                                                               
plans  that come  in and  he  has created  a specific  regulatory                                                               
process to accommodate the shortened timeframe.                                                                                 
     If  a  district  wants  to   continue  in  the  coastal                                                                    
     management arena,  they can certainly continue  to make                                                                    
     their  plan  revisions   under  the  other  regulations                                                                    
     within the Coastal Management Program,  which is just a                                                                    
     little  bit longer  and involves  more public  process,                                                                    
     but there is a chance  that their plan will sunset July                                                                    
     1, 2006, which is another provision within HB 191.                                                                         
4:39:58 PM                                                                                                                    
SENATOR  ELTON  said  it  has  been  characterized  to  him  that                                                               
Aleutians  West  has   submitted  a  plan  and   DEC  has  raised                                                               
significant issues  with it. He  asked if he was  suggesting that                                                               
the plans  that are submitted  in haste are approvable  under the                                                               
state's process  and if  not, that amendments  could be  added to                                                               
MR.  BATES  replied  saying  that a  public  review  process  was                                                               
created within  ACMP regulations that are  specific to timeframes                                                               
in HB 191.  Accordingly, the districts develop a plan  and put it                                                               
out for  a minimum  21-day public  comment period.  Once comments                                                               
are considered,  they will revise  their enforceable  policies as                                                               
appropriate. The  plan then passes through  the assembly, council                                                               
or CRSA  board and will  be forwarded to  his office by  June 30,                                                               
2005.  HB 191  requires  those  plans to  be  in accordance  with                                                               
statutes and  regulations and  they undergo  a full  state review                                                               
4:43:04 PM                                                                                                                    
SENATOR ELTON asked  if everything goes perfectly,  when would he                                                               
expect an approved Aleutians West plan.                                                                                         
MR. BATES replied:                                                                                                              
     I  believe  this  is  an  efficient,  streamlined,  and                                                                    
     effective planning  process to get program  approval or                                                                    
     program changes made for the  coastal district plans. I                                                                    
     would expect with Aleutians, as  with a majority of the                                                                    
     other  26,  27,  coastal  districts that  we  would  be                                                                    
     forwarding those to the  commissioner for signature and                                                                    
     then  on to  OCRM who  will  again need  to review  and                                                                    
       approve these plans. I imagine that will be April,                                                                       
      May, of 2006. What we figure it to be is about a 10-                                                                      
     month process from July when we receive these plans.                                                                       
4:44:31 PM                                                                                                                    
CHAIR WAGONER noted there were no further questions and set SB
102 aside at this time. He adjourned the meeting at 4:44:56 PM.                                                               

Document Name Date/Time Subjects