02/24/2009 08:00 AM House COMMUNITY & REGIONAL AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB74 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 74 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE COMMUNITY AND REGIONAL AFFAIRS STANDING COMMITTEE
February 24, 2009
8:04 a.m.
MEMBERS PRESENT
Representative Bob Herron, Co-Chair
Representative Cathy Engstrom Munoz, Co-Chair
Representative John Harris
Representative Wes Keller
Representative Charisse Millett
Representative Sharon Cissna
Representative Berta Gardner
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 74
"An Act relating to the Alaska coastal management program; and
establishing the Alaska Coastal Policy Board."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 74
SHORT TITLE: COASTAL MANAGEMENT PROGRAM
SPONSOR(s): REPRESENTATIVE(s) JOULE, EDGMON, BUCH
01/20/09 (H) PREFILE RELEASED 1/16/09
01/20/09 (H) READ THE FIRST TIME - REFERRALS
01/20/09 (H) CRA, RES, FIN
02/10/09 (H) CRA AT 8:00 AM BARNES 124
02/10/09 (H) Heard & Held
02/10/09 (H) MINUTE(CRA)
02/24/09 (H) CRA AT 8:00 AM BARNES 124
WITNESS REGISTER
REPRESENTATIVE REGGIE JOULE
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Spoke as one of the prime sponsors of HB
74.
TERI CAMERY, Planner
Planning Division
Office of Community Development
Department of Community Development
City & Borough of Juneau
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 74.
DAVID CASE, Attorney
Northwest Arctic Borough
Kotzebue, Alaska
POSITION STATEMENT: During hearing of HB 74, expressed the need
for resource development decisions to be decentralized through
the local coastal districts.
ELIZABETH HENSLEY, Intern
Representative Reggie Joule
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During hearing of HB 74, explained
amendments offered by Representative Joule.
RANDY BATES, Director
Division of Coastal & Ocean Management
Department of Natural Resources (DNR)
Juneau, Alaska
POSITION STATEMENT: During hearing of HB 74, answered
questions.
ACTION NARRATIVE
8:04:54 AM
CO-CHAIR BOB HERRON called the House Community and Regional
Affairs Standing Committee meeting to order at 8:04 a.m.
Representatives Herron, Munoz, Harris, Keller, and Gardner were
present at the call to order. Representatives Millet and Cissna
arrived as the meeting was in progress.
HB 74-COASTAL MANAGEMENT PROGRAM
8:05:12 AM
CO-CHAIR HERRON announced that the only order of business would
be HOUSE BILL NO. 74, "An Act relating to the Alaska coastal
management program; and establishing the Alaska Coastal Policy
Board."
8:06:02 AM
REPRESENTATIVE REGGIE JOULE, Alaska State Legislature, speaking
as one of the joint prime sponsors, pointed out that HB 74 has
garnered interest across the state. Since the 2003 changes to
the Alaska Coastal Management Program (ACMP) those in coastal
districts have tried to work with the existing program.
Furthermore, when similar legislation was introduced last year,
the Department of Natural Resources (DNR) indicated it would
introduce legislation to address the concerns, but it has not.
He emphasized that no one has been forthcoming with developing a
system that will work, including DNR. Therefore, HB 74 was
introduced, and he said he will continue to press forward on
this issue because something that brings those in impacted areas
to the table, the permitting process, in a meaningful way is
necessary.
8:10:27 AM
TERI CAMERY, Planner, Planning Division, Office of Community
Development, Department of Community Development, City & Borough
of Juneau, related support for HB 74. She pointed out that
coastal districts have been working to be involved with the
existing coastal management program, although the acceptance of
local policies has been reduced since 2003. Therefore, the most
critical thing that HB 74 does is to return local involvement to
the ACMP. She reminded the committee that coastal management is
the way in which local concerns are carried forward in the
process. This fall the state did go through a substantial re-
evaluation process of ACMP, but unfortunately no legislation has
been introduced. In the absence of [departmental] legislation,
HB 74 addresses the concerns of the local coastal districts,
state agencies, and industry. The aforementioned entities work
closely together as it's not a matter of separate interests.
Local governments, she related, have a very strong interest in
promoting healthy economies. Ideally, the ACMP, when run well,
is a good way to [promote healthy economies]. In closing, Ms.
Camery reiterated support for HB 74.
8:12:45 AM
REPRESENTATIVE MILLETT inquired as to an example of a project or
development for which the City & Borough of Juneau didn't have
input and that project or development was a detriment to the
local management plan.
MS. CAMERY said she couldn't identify a specific project. The
issue is that the City & Borough of Juneau lost a significant
number of very important policies with the 2003 change to the
coastal management program, but the City & Borough of Juneau
decided to keep those policies in the local land use code. An
example of one such policy maintained in the land use code is
the basic stream-side setback. Therefore, such a policy is
reviewed separately at the local level rather than through a
coordinated review with the state. The aforementioned adds time
and expense for the developer. Ms. Camery explained that the
issue with the districts is one of due deference. Although DNR
says that districts can always comment on projects and that the
department will always listen to the districts, the districts
are placed in a very different position when commenting on state
standards versus local policies. The districts are placed in a
much weaker position to carry forth local concerns, she opined.
8:15:50 AM
CO-CHAIR MUNOZ requested explanation of the carve out.
MS. CAMERY explained that the carve out refers to the removal of
the Department of Environmental Conservation (DEC) from the
process. Therefore, removing the carve out would restore DEC's
role in the process.
8:16:54 AM
DAVID CASE, Attorney, Northwest Arctic Borough, informed the
committee that he has been the borough attorney for in excess of
15 years. The borough has worked under the old ACMP and is in
mediation with DNR under the new ACMP. Under the old ACMP, he
recalled only two projects that were denied in the Northwest
Arctic Borough. Those denials were with the full participation
and concurrence of the state. Of the two denied projects, one
project was to dreg the entire coast of the borough for minerals
and the other project was the proposed development of an
archaeological historic site. The ACMP [prior to 2003] worked
well for the borough and was viewed as ensuring development and
participation at the local level. Mr. Case opined that the
question is whether development and decisions about development
will be made in a bureaucratically centralized manner within DNR
or will that decision making be decentralized throughout the
state and take into account the geographic, historical, and
cultural diversity of the residents of the state. He noted that
it has been frustrating to mediate the borough's participation
in the new program. When the borough has attempted to develop
local policies that address its unique resource, and cultural
and subsistence practices, the borough has essentially been
stonewalled by the department. Furthermore, the borough has
never been able to engage the department regarding the real
issue, regarding whether it's better for the state's resource
development to be centralized bureaucratically in state
government or to develop resources in conjunction with the
concerns of local jurisdictions. In a state as vast as Alaska
and with a constitution that affords local control, he
recommended, that these resource development decisions should be
decentralized through the local districts. The aforementioned,
he opined, is a public policy matter that the legislature is
qualified to address.
8:20:55 AM
CO-CHAIR HERRON, upon determining no one else wished to testify,
closed public testimony.
8:21:18 AM
REPRESENTATIVE JOULE turned the committee's attention to the
amendments he has offered for the committee's consideration.
8:21:38 AM
REPRESENTATIVE HARRIS moved that the committee adopt Amendment
1, which read [original punctuation provided]:
Delete at pg 7 (b)(2), lines 20-23.
Add at pg. 7 line 20 the following:
(b)(2)(a) are necessary given local conditions, and
(b)(2)(b) are supported by evidence, including
contemporary or traditional local knowledge, if the
policies are more specific than state or federal
statutes or regulations.
REPRESENTATIVE MILLETT objected for discussion purposes.
8:22:03 AM
ELIZABETH HENSLEY, Intern, Representative Reggie Joule, Alaska
State Legislature, explained that Amendment 1 would clarify
Section 9 as the former language was unclear.
8:23:38 AM
REPRESENTATIVE GARDNER inquired as to how one would dispute
contemporary or local knowledge if it's not documented in a
formal manner.
MS. HENSLEY explained that the enforceable policies must be
supported by provable evidence, including contemporary or local
knowledge. She opined that through the approval process of the
enforceable policy there would likely be a discussion as to
whether the local knowledge justifies the need for the
enforceable policy.
8:25:29 AM
CO-CHAIR HERRON inquired as to why the term "stricter" has been
deleted with Amendment 1.
MS. HENSLEY related that the term "stricter" was of concern
because some felt it allowed coastal districts to write
enforceable policies that would reach beyond state or federal
law. The aforementioned isn't the intent of HB 74, and
therefore the omission of "stricter" would lessen the concerns.
8:26:28 AM
REPRESENTATIVE MILLETT maintained her objection.
8:26:41 AM
REPRESENTATIVE HARRIS surmised that HB 74 is addressing that
those closest to the resource or impacted areas feel their voice
isn't being heard when it comes to development in the area.
Therefore, HB 74 intends to develop a coastal policy board that
would provide local areas more input in the decision making of
the development of the coastal areas. Representative Harris
further surmised then that the Amendment 1 describes the
parameters of the local jurisdictions.
MS. HENSLEY noted her agreement with Representative Harris'
understanding.
8:28:58 AM
REPRESENTATIVE MILLETT expressed concern with the terms
"contemporary and traditional," which she opined seem to be
conflicting terms and rather subjective.
8:30:07 AM
REPRESENTATIVE JOULE explained that traditional knowledge is
referred to as anecdotal information. He then related that he
has observed much local knowledge parallel scientific data.
Amendment 1 acknowledges the two systems working parallel.
8:31:19 AM
REPRESENTATIVE CISSNA posed a scenario in which a building is
constructed in an inappropriate area and the locals complain
they weren't listened to on the matter. She asked if Amendment
1 would address the aforementioned.
MS. HENSLEY said it could, depending upon whether the coastal
district had addressed such in its enforceable policies. With
regard to science and local knowledge, Ms. Hensley recalled that
in the 1980s scientists decided there were too few bowhead
whales in the Arctic Ocean to allow the whale hunt. However,
the whalers disputed that claim and charged that the bowhead
whale population was thriving. Eventually the whalers worked
with the scientists to prove that a healthy bowhead whale
population existed.
REPRESENTATIVE JOULE pointed out that the term "or" is used in
the language being inserted by Amendment 1: "contemporary or
traditional local knowledge".
8:35:09 AM
REPRESENTATIVE HARRIS acknowledged the Department of Natural
Resources' (DNR) opposition to HB 74, but asked if DNR supports
Amendment 1 over the legislation.
8:35:41 AM
RANDY BATES, Director, Division of Coastal & Ocean Management,
Department of Natural Resources (DNR), related his understanding
that Amendment 1 would expand the ability of coastal districts
to write enforceable policies beyond the original HB 74.
8:36:18 AM
REPRESENTATIVE HARRIS surmised then that DNR opposes Amendment 1
because it's stricter than HB 74.
MR. BATES opined that Amendment 1 uses subjective terms such as
"necessary", "local conditions", and "evidence" all of which
aren't defined. The aforementioned terms are much less
stringent and restrictive on what local coastal districts can
do. Therefore, Amendment 1 would expand the ability of local
coastal districts to write enforcement policies more broadly
than what was allowed in the original legislation. In further
response to Representative Harris, Mr. Bates confirmed that DNR
opposes Amendment 1.
8:37:31 AM
REPRESENTATIVE HARRIS related his belief that HB 74 is the
result of much frustration. He asked if DNR is prepared to
address that frustration and do something about it.
MR. BATES answered that DNR conducted a re-evaluation and
continues to work through what should and could be done.
However, at this point the department isn't prepared to
introduce any legislation or changes proposed in HB 74 or any
other changes. Mr. Bates relayed that although DNR doesn't
believe a statutory revision is necessary to accomplish change
with the ACMP, DNR recognizes it could, if appropriate, make
regulatory changes that would resolve some of the issues
mentioned. He emphasized that he isn't suggesting nor
committing that the department will make regulatory changes.
8:39:33 AM
REPRESENTATIVE MILLETT inquired as to whether DNR could define
the terms "contemporary and local knowledge", as specified in
Amendment 1.
MR. BATES responded that "contemporary" is a new term that isn't
in the current ACMP, and thus would require definition. The
language "traditional local knowledge" is in the ACMP and refers
to knowledge that is handed down from generations of users and
supported by a local body of some sort.
8:41:28 AM
REPRESENTATIVE CISSNA opined that there appear to be serious
climate changes resulting in a lack of food and those who
experience it the most live in the community. She asked if it's
possible to expand the thinking with the use of the term
"contemporary."
MR. BATES confirmed that if HB 74, including the term
"contemporary," passes, DNR would implement it according to the
law. However, the matter is one of local input, which has
always existed, versus local control, which HB 74 proposes.
Fundamentally, DNR believes the ACMP, as it's currently
statutorily structured affords relevant input from the coastal
districts. However, the ACMP is a state program, and thus the
state should remain in control of the decision making while
taking into account input from the coastal districts, including
information relating to contemporary and/or traditional local
knowledge.
8:44:02 AM
CO-CHAIR MUNOZ related her understanding that Mr. Bates' has
said that local control would be a result of HB 74. She
inquired as to whether Mr. Bates believes the coastal districts
had local control or input prior to 2003.
MR. BATES explained that when the ACMP was originally setup in
1977, it established a state coastal program with a local
implementation technique, which meant that the coastal districts
were a partner in the program and they had enforceable policies.
The coastal districts could apply those enforceable polices and
determine whether a project would be consistent or compliant
with the laws. Although the coastal districts never had veto
authority, the state always offered due deference and given
greater weight when the local coastal district had expertise or
responsibility in the area in which the district made comments.
Therefore, from DNR's perspective, prior to 2003 it was a
situation of local input.
8:45:28 AM
REPRESENTATIVE HARRIS reminded the committee of the litigation
over the Shell offshore drilling in which local people felt they
weren't given due consideration. He opined that the lack of due
consideration was for issues that would've likely been addressed
under the conditions being discussed today. The locals felt
their only remedy was litigation and now the entire operation is
stopped. The 9th Circuit Court of Appeals, he noted, is no
friend to Alaska. He then questioned, "If you don't have a
local remedy done by local people, are we not just setting
ourselves up for a continuous trek down to San Francisco and
maybe back to Washington, D.C., to have this stuff litigated and
litigated." He stressed his desire for the administration to
understand that local people have concerns rather than turn a
blind eye to local issues that could get worse.
8:49:02 AM
A roll call vote was taken. Representatives Cissna, Gardner,
Harris, Herron, and Munoz voted in favor of Amendment 1.
Representatives Keller and Millet voted against it. Therefore,
Amendment 1 was adopted by a vote of 5-2.
8:49:41 AM
REPRESENTATIVE HARRIS moved that the committee adopt Amendment
2, which read [original punctuation provided]:
At pg. 11, line 13 delete the following from sec.
46.40.070:
(B) are not preempted by federal statutes or
regulations; and
Add the following at pg. 11, line 13:
(B) are not preempted by federal or state law.
At pg. 11, line 20 add:
(c) In (a)(2)(B) of this section, an enforceable
policy of the district coastal management plan is
preempted by state statutes or regulations if it is
prohibited, either by express legislative direction,
or direct conflict with a state statute, or where a
local law or regulation substantially interferes with
the effective functioning or a state statute or
regulation or its underlying purpose.
REPRESENTATIVE MILLETT objected.
8:49:54 AM
MS. HENSLEY explained that Amendment 2 clarifies that local
policies can't override state law or render a state law moot by
articulating when a district policy oversteps its bounds. Ms.
Hensley highlighted that much of the discontent with the ACMP is
related to the lack of consensus as to what enforceable policies
are approvable. Amendment 2 clarifies that enforceable policies
aren't approvable when they are preempted by state or federal
law.
8:52:13 AM
REPRESENTATIVE MILLETT inquired as to the remedy when an
enforceable policy runs afoul of a regulation.
REPRESENTATIVE JOULE pointed out that departments write
regulations for any law passed.
8:52:55 AM
CO-CHAIR HERRON characterized Amendment 2 as guidance.
MS. HENSLEY noted her agreement because Amendment 2 guides the
[proposed] board regarding what plans it can and can't approve.
The concept of preemption is included because it's well known.
The desire is for the public and all interested parties to
understand the ceiling of enforceable policies, and the concept
of preemption is understood by many, she opined.
8:54:27 AM
MS. HENSLEY, in response to Representative Harris, specified
that on page 11, line 16, subsection (b) refers to federal
statutes and regulations and [proposed subsection] (c) refers to
state statutes and regulations.
8:54:56 AM
REPRESENTATIVE MILLETT withdrew her objection. There being no
further objection, Amendment 2 was adopted.
8:55:13 AM
REPRESENTATIVE HARRIS moved that the committee adopt Amendment
3, which read [original punctuation provided]:
Delete pg. 16, lines 21-28.
Add at pg. 16, line 21 the following:
(a) A city within the coastal area that is not part of
a coastal resource service area shall be included for
purposes of this chapter within in adjacent coastal
resource service area unless its governing body, by
resolution adopted by a majority of its membership,
chooses to exclude the city from an adjacent coastal
resource service area and a copy of the resolution is
filed with the commissioner of commerce, community,
and economic development.
REPRESENTATIVE MILLETT objected.
8:55:34 AM
MS. HENSLEY explained that Amendment 3 restores the existing
law's language.
8:56:29 AM
REPRESENTATIVE MILLETT related her understanding that Amendment
3 specifies that inaction by a bordering city would be included
unless they exclude themselves from the coastal plan.
MS. HENSLEY replied yes, adding that's the existing law.
8:56:52 AM
REPRESENTATIVE MILLETT removed her objection, and there being no
further objection Amendment 3 was adopted.
8:57:05 AM
REPRESENTATIVE HARRIS moved that the committee adopt Amendment
4, which read [original punctuation provided]:
Delete at pg. 17, lines 8-23.
Add at pg. 17 line 8 the following:
"coastal resource district" means each of the
following that contains a portion of the coastal area
of the state:
(A) unified municipalities;
(B) organized boroughs of any class that exercise
planning and zoning authority;
(C) home rule and first class cities of the
unorganized borough or within boroughs that do not
exercise planning and zoning authority;
(D) second class cities of the unorganized
borough, or within boroughs that do note exercise
planning and zoning authority, that have established a
planning commission, and that, in the opinion of the
commissioner of commerce, community, and economic
development, have the capability of preparing and
implementing a comprehensive district management plan
under AS 46.40.030;
(E) coastal resource service areas established
and organized under AS 29.03.020 and AS 46.60.0110-
46.40.180;
REPRESENTATIVE MILLETT objected.
8:57:13 AM
MS. HENSLEY explained that Amendment 4 accomplishes the same
thing as Amendment 3 as it restores language in the existing
law.
8:57:39 AM
REPRESENTATIVE GARDNER inquired as to why the sponsors initially
offered the language in HB 74 that [Amendments 3 and 4] delete.
MS. HENSLEY explained that when writing HB 74, the sponsor
reviewed DNR's proposed November legislation. Where the
sponsors felt they could make a concession by adopting DNR's
language, the sponsors did so. She noted that there are those
who otherwise support HB 74 who have expressed concern with this
[proposed] section, and the sponsors felt it should be removed.
8:58:59 AM
REPRESENTATIVE MILLETT withdrew her objection. There being no
further objection, Amendment 4 was adopted.
8:59:14 AM
CO-CHAIR HERRON announced that HB 74 would be held until March
3, 2008, and a committee substitute would be prepared for that
meeting.
9:00:07 AM
REPRESENTATIVE HARRIS reiterated that HB 74 is illustrative of a
larger problem of which the governor is aware. He opined that
the people of the impacted areas of the state need to heard. He
then said that he will vote in favor of moving this legislation
out of committee and he hopes Mr. Bates takes the aforementioned
sentiments back to his boss.
9:01:48 AM
CO-CHAIR HERRON related that after the last hearing he
approached Representative Joule and members of the industry and
was pleased that the sponsor brought forward amendments to work
toward the middle. However, he expressed disappointment that
industry reported it could do nothing.
9:02:29 AM
REPRESENTATIVE JOULE related that DNR, admittedly, has
overreached its authority, through regulation, per the original
charter of the ACMP. Therefore, he questioned why one would
leave the authority with DNR. The aforementioned is one of the
reasons for the introduction of HB 74. Representative Joule
then recalled that the Alaska State Constitution says the
resources of the state will be developed for all the people of
the state. Representative Joule then related his belief that
there are three kinds of resources: renewable, nonrenewable,
and human resources. He opined that DNR is leaving out human
and renewable resources when they reject the policies by the
local communities.
[HB 74 was held over.]
9:04:42 AM
ADJOURNMENT
There being no further business before the committee, the House
Community and Regional Affairs Standing Committee meeting was
adjourned at 9:04 a.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Committee Packet on HB74 for HCRA.PDF |
HCRA 2/10/2009 8:00:00 AM HCRA 2/24/2009 8:00:00 AM |
HB 74 |
| 02 10 09 AOGA Testimony on HB74 ACMP.pdf |
HCRA 2/10/2009 8:00:00 AM HCRA 2/24/2009 8:00:00 AM |
HB 74 |
| HB74sp1968.jpg |
HCRA 2/10/2009 8:00:00 AM HCRA 2/24/2009 8:00:00 AM |
HB 74 |
| HB74sp1977.jpg |
HCRA 2/10/2009 8:00:00 AM HCRA 2/24/2009 8:00:00 AM |
HB 74 |
| HB 74_Fiscal_Note_DEC-CO.pdf |
HCRA 2/10/2009 8:00:00 AM HCRA 2/24/2009 8:00:00 AM |
HB 74 |
| HB 74_Fiscal_Note_DNR-DCOM.pdf |
HCRA 2/10/2009 8:00:00 AM HCRA 2/24/2009 8:00:00 AM |
HB 74 |
| HB74 Pelican support letter.PDF |
HCRA 2/24/2009 8:00:00 AM |
HB 74 |
| HB74LetterFromUIC.pdf |
HCRA 2/24/2009 8:00:00 AM |
HB 74 |
| HB 74 AMENDMENT II.doc |
HCRA 2/24/2009 8:00:00 AM |
HB 74 |
| HB 74AMENDMENT I.doc |
HCRA 2/24/2009 8:00:00 AM |
HB 74 |
| HB 74AMENDMENT III.doc |
HCRA 2/24/2009 8:00:00 AM |
HB 74 |
| HB 74AMENDMENT IV.doc |
HCRA 2/24/2009 8:00:00 AM |
HB 74 |
| HB74sp1989.jpg |
HCRA 2/10/2009 8:00:00 AM HCRA 2/24/2009 8:00:00 AM |
HB 74 |
| HB74sp1999.jpg |
HCRA 2/10/2009 8:00:00 AM HCRA 2/24/2009 8:00:00 AM |
HB 74 |
| HB74sp2001.jpg |
HCRA 2/10/2009 8:00:00 AM HCRA 2/24/2009 8:00:00 AM |
HB 74 |
| LetterFromAleutiansWestCRSA2.10.9(pro).PDF |
HCRA 2/10/2009 8:00:00 AM HCRA 2/24/2009 8:00:00 AM |
HB 74 |
| letter from City of Cordova2.9.9 (pro).PDF |
HCRA 2/10/2009 8:00:00 AM HCRA 2/24/2009 8:00:00 AM |
HB 74 |
| LetterFromAML2.7.9 (pro).PDF |
HCRA 2/10/2009 8:00:00 AM HCRA 2/24/2009 8:00:00 AM |
HB 74 |
| LetterFromCityofValdez2.10.9 (pro).PDF |
HCRA 2/10/2009 8:00:00 AM HCRA 2/24/2009 8:00:00 AM |
HB 74 |
| LetterFromConocoPhillips2.10.9 (con).PDF |
HCRA 2/10/2009 8:00:00 AM HCRA 2/24/2009 8:00:00 AM |
HB 74 |
| NVOK support HB 74 Feb 2009.doc.pdf |
HCRA 2/10/2009 8:00:00 AM HCRA 2/24/2009 8:00:00 AM |
HB 74 |