Legislature(2003 - 2004)
03/26/2003 08:36 AM FSH
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE HOUSE SPECIAL COMMITTEE ON FISHERIES March 26, 2003 8:36 a.m. MEMBERS PRESENT Representative Paul Seaton, Chair Representative Peggy Wilson, Vice Chair Representative Cheryll Heinze Representative Dan Ogg Representative Ralph Samuels Representative Ethan Berkowitz Representative David Guttenberg MEMBERS ABSENT All members present OTHER LEGISLATORS PRESENT Representative Beth Kerttula COMMITTEE CALENDAR HOUSE BILL NO. 191 "An Act relating to the Alaska coastal management program and to policies and procedures for consistency reviews and the rendering of consistency determinations under that program; relating to the functions of coastal resource service areas; creating an Alaska Coastal Program Evaluation Council; eliminating the Alaska Coastal Policy Council; annulling certain regulations relating to the Alaska coastal management program; relating to actions based on private nuisance; relating to zoning within a third class borough covered by the Alaska coastal management program; and providing for effective dates." - MOVED HB 191 OUT OF COMMITTEE PREVIOUS ACTION BILL: HB 191 SHORT TITLE:COASTAL MANAGEMENT PROGRAMS SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR Jrn-Date Jrn-Page Action 03/12/03 0513 (H) READ THE FIRST TIME - REFERRALS 03/12/03 0513 (H) FSH, RES, JUD, FIN 03/12/03 0513 (H) FN1: ZERO(DFG) 03/12/03 0513 (H) FN2: ZERO(DEC) 03/12/03 0513 (H) FN3: (DNR) 03/12/03 0513 (H) GOVERNOR'S TRANSMITTAL LETTER 03/17/03 (H) FSH AT 8:30 AM CAPITOL 124 03/17/03 (H) Heard & Held MINUTE(FSH) 03/18/03 (H) RES AT 12:30 PM CAPITOL 124 03/18/03 (H) <Pending Referral> -- Meeting Canceled -- 03/26/03 (H) FSH AT 8:30 AM CAPITOL 124 WITNESS REGISTER TOM IRWIN, Commissioner Department of Natural Resources (DNR) Juneau, Alaska POSITION STATEMENT: Testified during the hearing on HB 191. PATRICK GALVIN, Petroleum Land Manager Central Office Division of Oil & Gas Department of Natural Resources (DNR) Anchorage, Alaska POSITION STATEMENT: Testified in regard to the current coastal management program and the consistency review process during the hearing on HB 191. MARTY RUTHERFORD, Consultant to the Administration and to the Department of Natural Resources (DNR) Anchorage, Alaska POSITION STATEMENT: Provided information and answered questions pertaining to HB 191. DALE PERNULA, Community Development Director City & Borough of Juneau (CBJ) Juneau, Alaska POSITION STATEMENT: Testified on HB 191 that insufficient time had been allotted to review the information. HAROLD HEINZE Anchorage, Alaska POSITION STATEMENT: Testified on his own behalf in support of HB 191. PAT CARLSON, Manager Kodiak Island Borough Kodiak, Alaska POSITION STATEMENT: Testified that more time was needed to review HB 191. OLIVER HOLM, commercial fisherman Kodiak, Alaska POSITION STATEMENT: Testified in opposition to HB 191. GERALD R. BROOKMAN Kenai, Alaska POSITION STATEMENT: Testified in opposition to HB 191. JACK CUSHING, Mayor City of Homer Homer, Alaska POSITION STATEMENT: Testified that if HB 191 passes, the opportunity for input of local knowledge into projects will be lost. REBECCA L. YATES Homer, Alaska POSITION STATEMENT: Testified on behalf of herself in opposition to HB 191. DANA L. OLSON Knik, Alaska POSITION STATEMENT: Expressed concerns relating to HB 191. JOHN OSCAR, Program Director Cenaliulriit Coastal Resource Service Area (CRSA) Mekoryuk, Alaska POSITION STATEMENT: Testified in opposition to HB 191 and SB 143, the companion bill. JEFFREY D. CURRIER, Manager Lake and Peninsula Borough King Salmon, Alaska POSITION STATEMENT: Testified that the major concern was to maintain local input and that more time was needed to analyze HB 191. TOM COLLOPY Homer, Alaska POSITION STATEMENT: Testified in opposition to HB 191. MARY FRISCHE Homer, Alaska POSITION STATEMENT: Testified in opposition to HB 191. R.J. KOPCHAK, commercial fisherman Cordova, Alaska POSITION STATEMENT: Testified that HB 191 would contribute to the accelerated development of non-renewable resources. BILL SMITH, Chair Homer Advisory Planning Commission; Homer, Alaska POSITION STATEMENT: Testified in opposition to HB 191. ALAN PARKS, commercial fisherman Homer, Alaska POSITION STATEMENT: Testified on behalf of himself in opposition to HB 191. ANNE WIELAND, fisherman Kachemak Bay, Alaska POSITION STATEMENT: Testified in strong opposition to HB 191. DeWAINE TOLLEFSRUD Homer, Alaska POSITION STATEMENT: Testified on behalf of himself in strong opposition to HB 191. ERIC JOHNSON Association of Village Council of Presidents (AVCP) Bethel, Alaska POSITION STATEMENT: Testified in opposition to HB 191. ALLEN JOSEPH, Vice President of Operations Association of Village Council of Presidents (AVCP) Bethel, Alaska POSITION STATEMENT: Testified in opposition to HB 191. CHUCK DEGNAN, Program Director Coastal District Coordinator Bering Straits Coastal Resource Service Area (CRSA) Unalakleet, Alaska POSITION STATEMENT: Testified in opposition to HB 191. DOUG HILL Anchorage, Alaska POSITION STATEMENT: Testified in opposition to HB 191. ROBERT ARCHIBALD Homer, Alaska POSITION STATEMENT: Testified in opposition to HB 191. NINA FAUST Homer, Alaska POSITION STATEMENT: Testified in opposition to HB 191 and SB 143, the companion bill. ROBERTA HIGHLAND, President Kachemak Bay Conservation Society (KBCS) Homer, Alaska POSITION STATEMENT: Testified in opposition to HB 191 and SB 143, the companion bill. MARVIN R. SMITH, Community Development Coordinator Lake and Peninsula Borough King Salmon, Alaska POSITION STATEMENT: Testified in opposition to HB 191. JEFF LEPPO, Attorney Alaska Oil and Gas Association (AOGA) POSITION STATEMENT: Testified in support of HB 191. BOB SHAVELSON, Executive Director Cook Inlet Keeper Homer, Alaska POSITION STATEMENT: Testified in opposition to HB 191 and provided project review statistics. KEITH BETTRIDGE, City Administrator City of Hoonah Hoonah, Alaska POSITION STATEMENT: Testified on HB 191, noting that there have been minimal coastal reviews in Hoonah during the past three years. PAULA TERRELL Alaska Marine Conservation Council Juneau, Alaska POSITION STATEMENT: Testified in opposition to HB 191. ACTION NARRATIVE TAPE 03-17, SIDE A Number 0001 CHAIR PAUL SEATON called the House Special Committee on Fisheries meeting to order at 8:36 a.m. Representatives Seaton, Wilson, Heinze, Ogg, Samuels, and Berkowitz were present at the call to order. Representative Guttenberg arrived as the meeting was in progress. Also present was Representative Beth Kerttula. HB 191-COASTAL MANAGEMENT PROGRAMS [Contains discussion of SB 143] Number 0070 CHAIR SEATON announced that the only order of business would be HOUSE BILL NO. 191, "An Act relating to the Alaska coastal management program and to policies and procedures for consistency reviews and the rendering of consistency determinations under that program; relating to the functions of coastal resource service areas; creating an Alaska Coastal Program Evaluation Council; eliminating the Alaska Coastal Policy Council; annulling certain regulations relating to the Alaska coastal management program; relating to actions based on private nuisance; relating to zoning within a third class borough covered by the Alaska coastal management program; and providing for effective dates." Number 0170 TOM IRWIN, Commissioner, Department of Natural Resources (DNR), told the committee that the Murkowski Administration has a vision for governing Alaska. [That vision] is driven by the reality of the budget and a recognition that in the current world economy, Alaska must compete for capital investment. He continued as follows: Ours is a world where industry analyzes the time it will take to get through a permitting process, because this time is real money. This affects the large oil and mining companies and, frankly, where time is money, it affects the smaller companies, and it really can affect the "mom and pop" applicants who have an idea for a business and are attempting to work their way through a very complex and uncertain regulatory process, regulatory system. Therefore, we have a basic goal to streamline and consolidate our permitting functions, and this will provide applicants a faster and more certain review. By a certain review, I mean that the standards of a review will be clear and concise, and not subject to various interpretation of the language in a vague standard. We are attempting to do this by three things: One, establish a project coordination office; two, identifying various regulatory functions that might be improved by clarified standards and processes; and three, by changing the coastal management program's consistency review process. Currently, the ACMP [Alaska Coastal Management Plan] consistency review process is very redundant, using local enforceable policies and state standards that are often a reiteration of the regulatory agency's permit standards. Number 0318 COMMISSIONER IRWIN continued: Our vision is to rely upon the permit standards ... themselves and the agency staff who currently implement their permit statutes and regulations, and not to require a separate analysis of the same standards as part of a consistency determination. However, having said that, I will note that at the last [House Special Committee on Fisheries] hearing, this administration heard some comments that we have taken to heart. As a result, we're continuing to review this legislation and will consider suggestions from the coastal districts and the general public. We will be ready to discuss these changes, if there are some, and provide a continuing comprehensive presentation in the first standing committee of referral [the House Resources Standing Committee]. COMMISSIONER IRWIN noted that there were people available on teleconference from whom he'd solicited assistance because of their experience and expertise with "this complex, regulatory, and redundant process." He continued as follows: As I've gone through permitting in the Interior [of Alaska], it can be very complex. Now that I've spent time studying how the coastal management program works, you can spend, literally, years trying to work your way through the system. I'm familiar with permitting. I would presume people who are not have a very, very hard time with this. But, again, we want to make sure you have the best chance to understand what the system is now. Number 0561 REPRESENTATIVE BERKOWITZ stated that [Commissioner Irwin] began his discussion by saying that Alaska has a role in the world economy. Conversely, he said it seems that the world's perception of how Alaska does business is very critical to [the state], particularly given the amount of federal land and resources that Alaska relies on for its economy. He noted that he sees a number of changes going on and questioned the administration's consideration of the federal and global perception that is being created by changes such as moving the division of habitat, eliminating biologists, the sweeping changes being made to the coastal management program, and getting rid of public interest litigants for resources, for example. He continued as follows: It seems to me we're ... extending an invitation to all the environmental lawyers in the country to come up here, and that's going to impede our development significantly. And we have a perception problem, and I haven't seen a clear demonstration that this is going to lead to the faster, more certain review that is the promise of the Murkowski vision. COMMISSIONER IRWIN responded that, based on his experience, he feels absolutely confident that the [proposed] changes are appropriate, will in no way compromise the environment, and are necessary for simplification of a very complex system in Alaska. He opined that Alaska needs to move forward, saying that, "We're very clearly making a statement with these changes." He admitted that the process of making changes can be difficult and therefore must be managed; he told the committee that he has managed a lot of change in his career and that he wholeheartedly supports the changes [that the bill proposes]. He said that the basic goals are not being undone, but rather that the system is being simplified to work more easily, so that [the state] can move forward on resource development. Number 0784 REPRESENTATIVE BERKOWITZ reiterated that he is concerned about "the perception." He continued as follows: I don't think this administration has done an effective job dissuading those who look at Alaska as an environmental haven. I don't think this administration, in particular, has credibility with those people, or [has] done a good job in addressing the concerns that they might have. And I think there's a rush here cloaked behind what I think is a very Alaskan antipathy towards bureaucracy, then regulation. ... We're giving short shrift to the impact this is going to have on a larger scale. Number 0832 COMMISSIONER IRWIN stated that he respectfully disagrees. Number 0854 PATRICK GALVIN, Petroleum Land Manager, Central Office, Division of Oil & Gas, Department of Natural Resources (DNR), told the committee that he would give a summary of the current coastal management program and the consistency review process. MR. GALVIN noted that the coastal management program is made up of statewide standards and local enforceable policies under which projects within the coastal zone are reviewed before being permitted by the state. He said that statewide standards are found in the regulations at [6 AAC 80] and include the standards for coastal development, habitat, airline, and water quality, for example. These standards apply to all projects taking place within the state's coastal zone. In addition, he said, there are local, enforceable policies that are contained within the 33 local coastal district plans, and these policies apply to projects that affect those particular districts. Number 1021 MR. GALVIN explained that when a project is proposed within the state's coastal zone, if it requires a state or federal permit, it must first be found consistent with these statewide standards and any local enforceable policies before the project can be issued a state or federal permit. Applicants who have projects in the coastal zone must first fill out a "coastal project questionnaire," which provides information on other state or federal permits that might be required, general information about the project, and information necessary to decide who, within the state, would be coordinating a consistency determination. MR. GALVIN said that the Division of Governmental Coordination (DGC), currently in the governor's office, coordinates any consistency review needed for a project that requires either a federal permit or permits from more than one state agency. If the project only requires permits from one state agency, then that state agency would do the consistency determination as well. Number 1130 MR. GALVIN stated that the initial review of the coastal project questionnaire [is] to determine whether or not an individual project review is required. He said there's an opportunity to determine whether the project consists only of activities that have, basically, been pre-approved, or have been found to be consistent with the coastal management program. That's done through existing general permits that are issued by (indisc.) agencies, as well as something called "the ABC list." He explained that it's a document that contains a list of permits that are ruled out from needing consistency reviews - because of being consistent with coastal management - and of activities that are found to be "generally consistent" - as long as the applicant agrees to certain requirements; those activities can proceed without an individual review. Number 1174 MR. GALVIN stated that if a project requires or includes activities that do not meet the pre-approved standards, there has to be an individual consistency review. That process, he noted, is found in the regulations at [6 AAC 50]. In response to Chair Seaton, Mr. Galvin said that his testimony is not written. Number 1216 REPRESENTATIVE BERKOWITZ said that he had asked for a flowchart at the last hearing [on HB 191], but none was given to the committee. He stated that he finds it a little perplexing that the administration is coming forward asking [the legislature] to change something when it hasn't [provided] a written explanation of what it is that would be changed. He added, "I think ... it's a poor performance that makes it harder for us to do our job as well." Number 1298 MR. GALVIN continued with his testimony, telling the committee that the project needs to have an individual consistency review, which will be under either a 30- or 50-day time clock. The consistency review starts with a public notice [and] a project review packet, which includes the coastal project questionnaire and applications for state permits, which is provided to the local district, the resource agencies, and any member of the public who has requested information on the project. MR. GALVIN said that the first period for the consistency review is an opportunity for review participants to request additional information of the applicant, and to get information needed to determine whether the project is consistent. In order to obtain the information, he said, someone may need to "stop the clock" on the review. Mr. Galvin explained that during a 30-day [review], for example, a person may stop the clock on day 20 to request additional information. MR. GALVIN noted that the next deadline usually is the comment deadline, a deadline by which the resource agencies, the coastal district, and any members of the public who wish to comment on the consistency of the project would submit those comments to the coordinating agency. That agency then takes those comments and prepares a "proposed consistency determination," which will either find the project, as proposed, consistent or inconsistent with all the enforceable policies and statewide standards. If it is inconsistent, [the agency] will likely suggest some alternative measures or additional changes to the project to make it consistent with the coastal program. Number 1489 MR. GALVIN noted that at that point, the resource agencies, the coastal district, or the applicant could choose to elevate the proposed consistency determination up to the resource agency directors and, after that decision is made, up to the commissioners. At any point during this time, he said, the applicant may choose to voluntarily stop the clock for discussion and negotiation among the review participants, in order to attempt to settle any outstanding issues. MR. GALVIN stated that at the end of the elevation process, if there is one or five days after the proposed consistency determination, the coordinating agency will issue a final consistency determination. He said, "That will generally find the project consistent, as long as the applicant has agreed to those alternative measures that I mentioned earlier." When the coordinating agency makes its proposed consistency determination and offers the alternative measures to make the project consistent, the applicant must accept those or suggest something else to make the project consistent and, ultimately, get a consistency determination from the coordinating agency in order for the state or federal permits to be issued. That, he concluded, would complete the process. Number 1578 CHAIR SEATON referred to the "ABC" list. He asked Mr. Galvin if he could estimate what percentage of the projects that came forward were pre-approved so that they didn't have to go through the 30- or 50-day process. MR. GALVIN answered that there are no solid statistics regarding Chair Seaton's request. He stated that most of the projects actually wouldn't get to the DGC, because it would be the agencies that would be reviewing them and finding that they met the general concurrence and then issuing permits "based upon that." Number 1626 MARTY RUTHERFORD, Consultant to the Administration and to the Department of Natural Resources (DNR), testifying on behalf of the administration, referred to Chair Seaton's question. She noted that if a portion of activity is outside the [ABC] list, then it automatically triggers an entire consistency determination. She stated that DNR did not keep data regarding how many of those occurred outside of the consistency determination process either. CHAIR SEATON clarified that he was trying to ascertain how extensive the [ABC] list is. Number 1673 MS. RUTHERFORD stated that there are approximately 2,000 total consistency determination reviews per year. Approximately 375, on average, are handled by DGC, which leaves about 1,500 single agency reviews. She said that while the [ABC] list is important to applicants and the state agencies, a great number of projects actually go through a consistency medium. MS. RUTHERFORD, in response to Representative Berkowitz's previous statement regarding having asked for a flowchart from the administration and its failure to provide one, said that there will be a flowchart at the [House Resources Standing Committee]. She said that she fully understands Representative Berkowitz's desire to have [a chart] to view; however, she said she has seen and participated in the attempt to develop flowcharts on the existing ACMP program over the years, and must say that "it's going to be somewhat daunting in itself." She said that [the administration] will do the best it can and provide as much data as it can to the [House Resources Standing] Committee. She added, "But, in itself, it will not provide a lot more clarification than Mr. Galvin was able to provide today." Number 1764 REPRESENTATIVE BERKOWITZ responded as follows: Could someone tell me, since time seems to be the critical component, ... how much faster this proposed method would be for a couple of different types of projects. And I guess typical projects would be, for example, oil exploration, or a dock, or a log transfer facility. I'd like to know how much faster this is going to be. Number 1807 MS. RUTHERFORD told Representative Berkowitz that she was not sure that she could tell him how much time a new process would take, compared with the old process; however, she said that the new program will rely much more on existing permitting authorities. She noted that, under the current program, there can be no permits issued until a consistency determination has been completed. She stated that there is at least a requirement for a 50-day permit review for most multi-permit projects. She said, "It is our hope that, under the new program, we will be able to begin issuing permits as the regulatory agencies complete their analysis as to whether permits are appropriate, and what stipulations will reside with that particular permit." She said that the profit will be occurring more quickly, because [the permitting] can be segmented. Number 1870 CHAIR SEATON stated that as he understands the new program, the municipalities or boroughs can adopt their existing enforceable policies as ordinances. He indicated that there is confusion from the previous hearing, when the committee was told that the permittee will still have to abide by the enforceable policies that are adopted in ordinance by the municipalities or boroughs. He continued as follows: So, the confusion here is that the permittee is going to come to DNR [and] is going to get a permit, but that permit will really not let them do ... their project, because there's no longer a consistency review that, basically, includes the boroughs and the cities. And so, then, after the permittee has his DNR permit, he's going to have to ... somehow live within those enforceable policies, if the borough or the city adopts them. CHAIR SEATON asked [Ms. Rutherford] to explain if his understanding was correct, and if she could explain how that would work under the new program. Number 1946 MS. RUTHERFORD replied, "That is partially correct." She stated that while both the incorporated and the coastal resource service areas have enforceable policies that must be addressed as part of the state consistency determination, the reality is that certain Title 29 municipalities - the North Slope and Kodiak, for example - already have permitting responsibilities that the applicant has to address. She added, "So, in reality, it doesn't change that piece at all and it doesn't add additional time." Number 1995 CHAIR SEATON said that if the enforceable policies are moved out of the DNR process, the permit would not cover any of those enforceable policies, but the permittee, after getting the permit, would still have to work with the borough on a separate level to fulfill the project, using the enforceable policies that weren't within the consistency review anymore. He stated his understanding that this would get the consistency review over with more quickly, but said that he is trying to figure out whether that will shorten or lengthen the time that a project will take, since "after you get the one, then you have to proceed on to the other borough and municipality project." Number 2056 MS. RUTHERFORD stated her understanding that a person does not have to get the consistency determination before proceeding to getting the municipal permit; one is not a threshold requirement for the other. She said that the new program will not add any additional time. In response to a comment by Chair Seaton, she concurred that, currently, all of the enforceable policies are included in the consistency review permitting process. She stated that what happens currently is that the enforceable policies are carried on state permits; they are not implemented by local ordinances. She said, "And this requires that they begin to implement some of those on the local level." She added, "They already duplicate the local permitting to some degree." Ms. Rutherford noted that the local enforceable policies are sometimes quite duplicative of state statutes, as they're often a reiteration. She explained that some of the confusion over the existing program and some of the conflict has been "trying to sort out who has authority on a standard that isn't an enforceable policy of the district plan, when in fact it's just a reiteration of a state standard." Number 2152 REPRESENTATIVE WILSON asked Ms. Rutherford to clarify whether the new process [in the proposed bill] would [eliminate] duplication. MS. RUTHERFORD answered as follows: Many times, the district enforceable policies are duplications of existing state statutes. What certain municipalities, like North Slope Borough, have done is they have imposed their own local land use permit requirements, like fill permits or zoning permits. So, they have tended to be different reviews all along. But the changes in the program, as entertained in HB 191 would eliminate the fact that the local enforceable policies that are part of the consistency determination are no longer repetitive, or sort of a restatement of the state standard. And that consistency [review] process would rely upon state statutes and the state permitting process, to determine consistency. I think it's really important to note here that since the ... ACMP program was ... approved by OCRM [Office of Ocean and Coastal Resource Management] in 1979, our state environmental and land use laws have really matured. Basically, in intervening years, the state statutory framework has developed substantially, particularly in DEC's [Department of Environmental Conservation's] environmental laws and DNR's land use laws. So, frankly, the ACMP filled a void when it was implemented back in 1979, but it has evolved to the point where it's quite duplicative. Number 2300 REPRESENTATIVE HEINZE asked Ms. Rutherford to share her feelings on [the proposed legislation] and to tell the committee if she sees any loopholes in it. Number 2314 MS. RUTHERFORD stated that she thinks the [proposed] legislation attempts to keep the benefits of the coastal management program; it focuses primarily on the ability [of] the state to affect federal activities and activities on the outer continental shelf, and at the same time, eliminate the inefficiencies and redundancies that [are] inherent in the existing program. She said that she thinks [the language of HB 191] significantly clarifies the standards that are necessary for a project to be found consistent, eliminates redundancies as previously stated, and streamlines the permitting approval process by incorporating the consistency determination into the permitting approval process. MS. RUTHERFORD continued as follows: It is unarguable that, in fact, it does eliminate the habitat standard. And that is something that I feel that the legislature will have to address over time, if it's determined that that is a gap. I've always felt that the habitat standard, which is a policy like all the enforceable policies are -- and, frankly, the enforceable policies were never crafted as laws, and inherent in that is the problem with sometimes interpreting and applying them. But I've always felt that the habitat standard would best be promulgated as a statute, with associated implementing regulations. So, I feel that we've captured most of the benefits that the coastal management program can provide, and that, if in fact it is eventually determined that there are problems associated with not having a habitat standard, that that is best done through statute. Number 2416 REPRESENTATIVE SAMUELS asked, if two bureaucracies would be doing what one can do, whether there would also be twice the chance of a lawsuit - another chance to enter in at the appellate level to, basically, fight the same complaint two or three times. MS. RUTHERFORD answered that her hope is that a program could be crafted that would both be responsive to the environmental and land use needs of the state and sustain both administrative and judicial review. She added that she is, of course, speculating. Number 2464 REPRESENTATIVE OGG stated that he is curious about what happens when this statute goes into effect. He indicated page 9 and new regulations or new ordinances that the municipality may adopt. He asked, when a borough or municipality has adopted its coastal zone management into its zoning "in its entirety," what would happen to the zoning requirements that duplicate new state requirements "under this statute." MS. RUTHERFORD replied that [the borough or municipality] could still continue to implement its local ordinances at the local level; however, she said that she does recognize that there is a bit of a challenge with regard to how quickly the municipalities "can move to do that." She stated that this is one of the issues being considered. She added, "Obviously, what they then propose to DNR to embrace as part of the state consistency review would probably take a little longer." Number 2550 REPRESENTATIVE OGG clarified that he wanted to know what happens to the present laws that would duplicate the state laws that an organized borough or city has. He asked, "Do they have no effect, because the state has that, or do the present laws create a duplication in the permitting process?" MS. RUTHERFORD answered as follows: To the degree that they've already [adopted] them as part of their municipal ordinances, they will continue. If they have not, they are eliminated from the state program, except those standards that are particularly called out ..., which are primarily marine ... mammal and fisheries standards ... starting on page 10. MS. RUTHERFORD stated that that has always been the intent of the program. Number 2630 REPRESENTATIVE BETH KERTTULA, Alaska State Legislature, thanked Mr. Galvin and Ms. Rutherford for being available. She stated that she is still hoping for an overview in the [House Resources Standing Committee] discussing why the state has gotten involved with the program to begin with. She said that she thinks that Ms. Rutherford touched on that, in terms with the interaction with the federal agency. She indicated "the new legislation" and said, "If you don't have a state permit involved, you're not going to be going any further in the review on a federally permitted activity. And if you do have a state permit, all you're doing is looking at the state side of it. Is that just in this drafting of the legislation, and can you tell me why it's drafted that way?" MS. RUTHERFORD responded, "That is not in there. They will still have to ... address the regulatory standards of the state, yes. But one of the things we do recognize is that the goal of the program is to affect federal activities, and we have provided for that within the bill." Number 2710 REPRESENTATIVE KERTTULA asked about the federally permitted activities. She added, "I mean, we aren't going to be taking them out if they take permits?" MS. RUTHERFORD said that is correct. In response to a follow-up question from Representative Kerttula, she stated that she is not sure she knows why. She said that she thinks it is one of the issues that is being discussed. She mentioned comments made at the previous [House Special Committee on Fisheries] meeting. She added, "But in the current proposal, you are correct, it ... does not make that provision." She said that when there is no state statute, generally there is no activity of any significance. Number 2749 REPRESENTATIVE KERTTULA said that she is trying to think of an example, but is sure they exist, where there is a federal permit at stake, "and somehow we don't have the state." She said that is something she is concerned about. She said she has heard that the aim is to maintain all the protections with the OCS [outer continental shelf] and with the federal actions. She said, "I think federal permits are right in there." REPRESENTATIVE KERTTULA asked what happens to the unorganized borough, to the coastal resource service area that does not have zoning authority and doesn't have anything that could be adopted to be enforced in those areas. Number 2784 MS. RUTHERFORD, in response to Representative Kerttula's initial question, noted that the state, generally, has some sort of certification when there's any kind of activity that requires a federal permit. She said that it's rare and insignificant when there's no state permit. Even then, she noted, "We do have state certification on federal permits." MS. RUTHERFORD, in regard to the issue of the unorganized areas, admitted that this is "a difficult one." She said that the framers of the [Alaska State] Constitution intended that boroughs be created. She said that she thinks, as the state evolves, in areas where there is some sort of economic base, it behooves the local residents to embrace the authorities associated with boroughs and, through that vehicle, they can then participate in land use planning and addressing their own issues. Ms. Rutherford also noted, "The fisheries and marine mammal standards that are important, many, many times to the local residents, are embedded in this legislation and will be affecting federal activities and [the] outer continental shelf." REPRESENTATIVE KERTTULA stated that this argument has been used before in the legislature to quite a resistance from the areas themselves, particularly [from] those that don't have the financial ability to carry forward with borough organization. She stated that she thinks that one of the beauties of coastal management has always been [the] voice [of] the local people, particularly in areas such as Northwest Arctic, where without the program, people would have no local say. REPRESENTATIVE KERTTULA continued that she agrees with [Ms. Rutherford] completely on the standards issue. She said that she thinks it has been the Achilles heal of the program since its inception. She stated her concern that by losing habitat standards, in particular - which she said she completely agrees should have been in statute - along with the other things that are happening in other pieces of legislation, "we" are losing our ability to review projects that could have critical impacts, particularly on [Alaska's] fisheries. REPRESENTATIVE KERTTULA asked [Ms. Rutherford] if she is stepping back and taking a look at what's "dropping out" if everything that's being proposed happens all at once. Furthermore, she asked if [Ms. Rutherford] is looking at whether or not [the state] might be better off taking a hard look at the standards and writing them so that everybody has certainty. She said that in the past "it's been cobbled together to try to come up with how to go forward." She asked, "Is someone doing that?" Number 2948 MS. RUTHERFORD stated that in her 9-10 years with [the Department of] Community and Regional Affairs, she has always been a strong advocate for local control and local authority. She continued as follows: I've always, however, felt that the best authority is embedded in incorporated entities. ... They're subdivisions of the state; there are very strong municipalities in the state of Alaska. And I frankly think that the state has moved away from providing any incentives for people to look to why they should incorporate. Having said that, however, I would also note that not only do they have the option in the unorganized areas to forming boroughs, but the cities within those unorganized areas can still promulgate ordinances that then they propose to DNR for incorporation in the consistency reviews. Regarding the, sort of, cumulative effect of all the changes, I frankly think that the only issue that is really substantive might be the habitat standard. And as Representative Berkowitz pointed out appropriately, the policymakers are the legislators .... TAPE 03-17, SIDE B Number 2984 REPRESENTATIVE BERKOWITZ thanked Ms. Rutherford for her good work and added that he assumes she is now on contract with the state [since she is writing for private industry]. He stated for the record that he would like to have a timeline for a couple of projects, so [the committee] can know empirically what the difference is going to be between the current and proposed methods. He noted that there is some indication from Commissioner Irwin that other "fixes" were going to be made, and he said that Ms. Rutherford spoke about "other issues that they've been discussing." He said he would like to know what those issues are and what fixes are going to be proposed. He stated, "I've watched these train tracks long enough to know when a train's about to move, and it's going to another committee and I'm not on that committee, and I want to know what's going to be happening in [the House Resources Standing Committee]." Number 2934 COMMISSIONER IRWIN noted that the discussions are ongoing and the information requested will be brought to the [House Resources Standing Committee]. He respectfully indicated that he sees [the issue] opposite to how it is seen by Representative Berkowitz. He explained, "What it says is we're listening. And that's what I would expect these committees would want us to be doing." Number 2890 REPRESENTATIVE OGG referred to page 9, lines 14 - 15, indicating that the commissioner "may include local ordinances". He asked if there would be any administrative-type standards by which the department would be held accountable or if this would be left to the department's discretion. COMMISSIONER IRWIN responded that in all cases, standards will ultimately have to be applied. As the program is developed, the first and most important step is [ensuring that] "it's similar, it's parallel, it provides the certainty that the program itself has." The goal is to make everything the same so that it is more functional. He commented that one piece that's missing from this discussion, which he'd like the committee to focus on, is to not forget the establishment of a project-coordinating office. He said the goal of that is to get a team of multi- talented, highly specialized people, with their own strong, technical opinions, along with bringing in the affected communities and other commissioners. He said there would be a lot of people working together, where people are working together toward a goal. He said discussions have already been started with the BLM [Bureau of Land Management] and the EPA [Environmental Protection Agency]. The goal would be to work together as a team, without compromising principles, but if there are common goals, the benefit of such a group effort is how "you really get things done in this world," he said. REPRESENTATIVE BERKOWITZ asked if the federal government had been consulted on program approval, and if so, what the response was. COMMISSIONER IRWIN replied that those discussions are in progress, are ongoing, and were started when that "very select group worked on it." He added that both [Patrick Galvin and Marty Rutherford] had been on the group designing this program, "from day one." He added that all the pieces have been approved, and the whole package is being evaluated. REPRESENTATIVE BERKOWITZ asked if the federal government had signed off on this package. COMMISSIONER IRWIN replied, "On the individual items, they have. Now that we're at this point, we're doing the whole package." Number 2677 DALE PERNULA, Community Development Director, City & Borough of Juneau (CBJ), testified that he didn't have comments about the legislation itself because the legislation had only been received last Thursday and there has not been the necessary time to review it or to present it to the local elected officials. He did mention that this legislation could potentially affect some of Juneau's waterfront and therefore requested additional time for CBJ to review the material to provide further testimony. REPRESENTATIVE WILSON asked what timeframe would be required so that testimony could be provided at the next scheduled standing committee meeting, which would probably be during the next week. MR. PERNULA said his concern was not so much that of a staff review, but of getting the materials to the elected officials to give them time to prepare their comments. CHAIR SEATON confirmed that there were two more committees of referral, the [House Resources Standing Committee] and the [House Finance Committee], noting that it had been waived from [House Judiciary Standing Committee]. He then referred to Juneau's waterfront area; he inquired as to Mr. Pernula's familiarity with the coastal zone process and asked whether a separate permitting process by the municipality would be different from the process that is currently being done. MR. PERNULA said, "We have adopted ordinances dealing with those policies, they have been adopted, we are enforcing them, and they would be enforced after this piece of legislation would be adopted." CHAIR SEATON rephrased his question and said, "Currently those enforceable policies are adopted in your borough, and the consistency review takes care of all those things to make sure they're all wrapped into the permit." MR. PERNULA said, "right." CHAIR SEATON continued, "And they're not included in the specific ones that go forward in this bill. So, then, you'll be enforcing those separately from the consistency review, and separately from the permitting process." MR. PERNULA confirmed that this was his understanding. CHAIR SEATON asked if that process would be any different from the current process, and if a separate permit would need to be issued. MR. PERNULA said, "That is my understanding, that we would." He said, however, that having this bill only since last Thursday hasn't allowed for a thorough analysis or testimony. Number 2480 REPRESENTATIVE KERTTULA said that currently a lot of these issues "fall out" in consistency determinations - municipal zoning issues. She asked if these concerns held by coastal districts would be taken care of in this process. MR. PERNULA said, "I believe, yes." REPRESENTATIVE KERTTULA continued that her concern was that without the kind of involvement that [Mr. Pernula] currently has, and with being forced to use a separate process, "it's a little more difficult to come forward." She asked, "Is that something you could comment on?" MR. PERNULA said that it was premature for him to comment, but that it would be a concern that right now there is a coordinated program in which there are different levels of government, with different regulations, in a coordinated process. That's one of the things that would be reviewed, he added. Number 2418 REPRESENTATIVE GUTTENBERG asked if Juneau had habitat standards built into its ordinances. MR. PERNULA affirmed this to be the case. REPRESENTATIVE GUTTENBERG referred to adoption of some of the "local ordinances" on page 9, and commented that there would be orphaned ordinances, similar to the habitat standards and asked if Mr. Pernula thought he would be able to coordinate this, and would still be able to permit. MR. PERNULA responded that regulations would still be enforced, independently of the state. Number 2363 REPRESENTATIVE KERTTULA said, "You would no longer have any reach into the state unless you had your ordinances adopted. And you really wouldn't have any reach into the federal activities because they would all be gone. Right?" MR. PERNULA said, "That's my understanding. However, we've only had [the bill] since Thursday and we need to do a more thorough analysis." REPRESENTATIVE KERTTULA continued, "That's the beauty of coastal zones, too, is that it gives you that power to comment and have some authority over (indisc.)." Number 2326 HAROLD HEINZE testified that he was representing himself as a citizen, and mentioned that he was a former commissioner of the [Department of Natural Resources] in the early 1990s, and as such, offered his experience working with the ACMP at the decision-making level within the executive branch. He provided the following testimony: First of all, I clearly am in support of what the administration is trying to do here. I believe the impact of what they're trying to accomplish will be a very positive one for the state, and I believe it's an absolutely good move expected by, frankly, the citizens of Alaska. I think the legislature, to not do this, would be counter to where the citizens of the state want to go, for a couple of reasons. Number one, I think that you're going to get better decisions out of this. MR. HEINZE continued: Commissioner Irwin talked about this a little bit, but I think it's very important to realize that the very process that you exhibited frustration over trying to understand - that exists right now - is an incredibly bureaucratic process. There is absolutely nothing in the history of the ACMP that indicates that bureaucratic process has resulted in better decisions. In actuality, I think you have a long history of commissioners of natural resources who have made good decisions. And the reason they make good decisions is because they do go talk to local communities, they do involve people, and they listen to the legislature and they listen to a lot of other folks. And they balance them properly, the constitutional mandate to make sure that the resources of Alaska are used to the maximum benefit of all Alaskans. That's a very prime driver of the decision process - not a bunch of forms, not a bunch of things that don't necessarily relate. Number 2203 MR. HEINZE continued: Secondly, I think this is a classic example of a program that started out maybe with some very simple ideas at the federal level. Basically, this program came about because the federal government wasn't listening to local people. And so it started as a federal program. And, frankly, it wasn't to fix anything in Alaska; there was nothing wrong here. There was no reason (indisc.) ... in Alaska, but it was necessary in California and some other places. And it happened that Congress in their wisdom passed this; we came under it. It took a long while for it to get implemented. In the [1990s] we were still at the tail end of the implementation of the ACMP. It was still evolving. But in the last 10 years, all the problems that existed in the 1990s still exist. They haven't been able to be solved. The idea of involving local communities in the decisions made at the state level is a good one, and it will occur with or without this program. Number 2124 MR. HEINZE concluded his testimony: What I see happening in this legislation is separating out the idea of a separate office under the governor with its own bureaucracy, its own purposes and everything else, and basically taking the function and moving it under DNR as part of a general decision process that we make here in Alaska. We've been willing to trust the commissioner of the Department of Natural Resources to make a lot more important decisions, frankly, than what we're talking about here. And I don't see any real problem in trusting that to happen. Frankly, the better decisions in government are made when there is a clear-cut responsibility and authority and, frankly, accountability for those decisions. And that's the way it's worked. I think that should be one of the major focuses. I think this is a clear opportunity to save money. I think it's a clear opportunity to streamline government, and I think it's a clear opportunity to make better decisions. Number 2088 CHAIR SEATON said that the today's discussion is not about money, but is about integrating local and state management, noting that he wanted to "separate those out" so that testimony would be focused on HB 191 and not on EO 106. REPRESENTATIVE KERTTULA thanked the [former] commissioner for his testimony, which mentioned federal concerns and the state's initial involvement with this program. MR. HEINZE said that he wasn't a lawyer but he believed that the federal government, under its own law, was required to consult under the (indisc.), regardless of the state's position. He commented that the state could neither stop the federal government nor require its involvement, saying that "if the federal government is going to listen to local communities, that's their choice, not ours." He said his only concern was that the state make good decisions regarding its resources. Number 1978 REPRESENTATIVE GUTTENBERG acknowledged Mr. Heinze's unique perspective on this issue and asked if he had found anything that could be considered as a definitive deficiency. MR. HEINZE replied that based on his experience, the current ACMP process is a "total minefield" and that it impedes a commissioner's ability to make good decisions. He referenced one of the more difficult decisions he had to make as a commissioner, which was the leasing of state land east of Point Barrow. He said fortunately, that contentious decision didn't have to be made through the ACMP, and that "otherwise, we'd still be trying to make that decision, I'm convinced." He emphasized that his argument was for moving away from a bureaucratic approach to decision making and to move towards [locating this] within the executive branch. He told the committee that he gives this administration credit for being willing to do all the work necessary to figure out how to change and revise this process. Number 1874 PAT CARLSON, Manager, Kodiak Island Borough, testified that not much time had been allotted to analyze the material. He stressed that thousands of miles of coastline and some of the richest fishing areas of the world lie within Kodiak's jurisdiction, and the concern is "related to [Kodiak's] ability to interact with federal policies, through the state." Mr. Carlson referred to a letter he had received several months ago from a state bureaucrat indicating "the State of Alaska did not recognize local zoning." He said, "If our ability to interact with the policies at the state level, with state jurisdiction is preempted by state jurisdiction, then there's a serious conflict and this may be an opportunity to straighten that out for everybody in the state." He said his other concern is recognizing that the legislature acts as the legislative body, or assembly equivalent, for the unorganized borough ... [online connection temporarily lost]. Number 1763 MR. CARLSON continued that [Kodiak] has interacted quite cooperatively through the tri-borough agreement and recognizes the need for streamlining the permitting process. He said, "Our big concern is that we interface properly and still maintain authority to recognize our local needs and habitat concerns. We look forward to providing some amendment language after we have the opportunity to further study this with our peers and provide what we hope are helpful suggestions ..." CHAIR SEATON said if the desire was to incorporate amendments from existing enforceable policies or concerns regarding inclusion of the statewide habitat standard, then those amendments should be forwarded to the governor's office, the next committees of referral, and local legislators. Number 1672 OLIVER HOLM, commercial fisherman, testified that he has fished in the Kodiak area for about 40 years, and said that he was concerned about maintaining fisheries protections under the Alaska Coastal Zone Management Act and how this bill would affect those protections. He told the committee that it appears that the maintenance of fisheries protection would not be as good, at least during the interim period, and that many people's livelihoods depend on fisheries. He said that the other issue pertains to borough's and local government's maintaining access into the process; it appears that HB 191 would allow boroughs to enforce rules and create statutes but that they'd lose influence on federal waters outside of the three-mile area. MR. HOLM pointed out that a lot of [Kodiak's] fisheries occur outside of that three-mile area, and because the habitat is contiguous and indivisible from inside the three-mile area, the result would be a diminished local involvement in coastal zone issues. This would lead to an increased cost to local governments to participate because local governments would have to set up their own enforcement and monitoring efforts, which are currently done through the state process. He noted that DNR could choose to embody some of the local concerns and regulations, "but they may choose not to." He stated that with the adoption of HB 191, some local provisions in coastal zone management would disappear, and he hoped that local input would be maintained. He urged the committee not to pass HB 191, but to further scrutinize the bill. CHAIR SEATON asked if Pat Carlson would fax the letter indicating that the state wasn't complying with local ordinances [letter referenced in his testimony] to the committee. Number 1477 GERALD R. BROOKMAN provided the following testimony: First, I believe that this bill would do much to harm Alaska's fisheries, and do little, if anything, to help them or their management. We need to take a balanced approach to the management of Alaska's fisheries. The ACMP, while it may appear cumbersome to some people with a limited view of the issues involved or who are only concerned with a single issue, is a very important tool to assist the state in achieving balanced management, where all affected parties have an opportunity to voice their concerns and have them considered by an impartial body, or one that is, in theory if not always in practice, impartial. To throw it out would be tragic. HB 191 would deny the public an opportunity to have input into issues that affect their vital interests. It would deny local communities the opportunity to have input into how their areas are developed. Alaskans have, in the past, criticized management decisions made at the federal level without taking into consideration state interests; ironically, this bill would transfer management decisions from the local to state level. While the final decision would continue to be made at the state level, retaining the ACMP as it is presently constituted would at least continue to allow local input into the final decisions. In summary, HB 191 is one of the most important [bills] that will be considered by this legislature. Its effects would be disastrous to our fisheries. I urge that you vote against it. Number 1357 JACK CUSHING, Mayor, City of Homer, stated that he's been elected to office six times and that "in real life" he is a civil engineer and, as such, has had to file numerous permit applications through DGC. In addition, he's on the Alaska Coastal Policy Council, representing lower Cook Inlet. He said if this bill passes, a tremendous opportunity will be lost for the input of local knowledge into projects. He said that during the time he's been on the Alaska Coastal Policy Council, he's hardly ever seen a project stopped or slowed down. On the contrary, he's seen a tremendous amount of input received and considered in a timely manner, with the assistance of local knowledge brought into the projects. Number 1207 REBECCA L. YATES said she was representing herself, that she has a law degree and an environmental law certificate from Lewis and Clark Law School in Portland, Oregon, and has extensively studied riparian zone issues. She said she is very opposed to HB 191, and reiterated others' testimony that local knowledge is vital to this process. With Alaska's strong dependence on fisheries, anything that has the potential to destroy the fisheries should be scrutinized. She emphasized that it is extremely important to maintain the input of the public and of local knowledge into the process. Number 1138 DANA L. OLSON provided the following testimony: I'm concerned about this bill because 16 [U.S.C.] Sec. 1455(d)(11) was land and water use, was the format for the coastal management program, and the state has been actively doing negotiated rule making under the Clean Air Act. There was no opportunity for persons to apply. I believe that this would violate the public participation process, that it would be, in effect, [a violation]. I wanted to say that the 1990 amendment to the coastal zone requires that you consider the zone as a whole, and so this would be in conflict with the local policy. I wanted to say that a precedent lawsuit that I had in federal court, 97-219-CV, established that in the Mat-Su Borough's Knik Fairview Comprehensive Plan, [this] was not a comprehensive plan. It was simply a zoning implementation plan. MS. OLSON continued: Since all the other comprehensive plans were implemented under the same authority, under the same manner, it can be inferred that the Mat-Su Borough has no local comprehensive plans; they [are] simply having zoning implementation plans not [being] implemented. One of the problems that I find in dealing with the coastal management program is that I've requested numerous times, for public meetings, and I've been ignored by Mr. Hudson (ph). An issue comes up; what happens when the local government doesn't take your input, as was articulated in my federal lawsuit. What does the state do then, and what is the administrative process for that? Number 0962 CHAIR SEATON asked if Ms. Olson had submitted written testimony. MS. OLSON replied that she had already submitted written testimony and concluded by saying, "I provided case law to say that, 'No, I have no authority to go back and revisit the provisions of law that were prior-approved.'" Number 0930 JOHN OSCAR, Program Director, Cenaliulriit Coastal Resource Service Area (CRSA), provided the following testimony: Of the listed 44 Cenaliulriit villages, 15 are traditional primary governments, 28 [are] second-class cities, and 1 [is] first class. Cenaliulriit and AVCP, Association of Village Council Presidents, were not notified of these bills, nor requested beforehand for input prior to the introduction of these bills. The traditional governments will not have the same ability under Title 29, and even if the second-class communities are set up already, they do not have ordinances in place for standards and how they can proceed with development. This bill threatens the process it took to meet with every community to fine- tune and streamline Cenaliulriit policies for the last 18 years. Several villages rely on the communal and vast ancestral areas both in water and inland, and even wetlands. Because of the wetlands (indisc.) pretty vast, and resource dependence, it is documented by the subsistence mapping that we have been collecting over the last three years. The rural communities are unique from the urban areas, having a direct tie [to] a healthy balance of those resources. Most favor renewable resources as their base of their daily sustenance versus destructive development that may have permanent destruction to guaranteed yearly yields and harvest for future generations. But we find that local participation, using this process the way it's been going through right now, has always proven to be successful in providing wise mitigation to problems that we encounter in planning and local infrastructure development. And a lot of our projects have been reviewing our water and sewer projects, which are supposed to be putting the honey bucket into the museum, as an example. I see a bunch of other projects always going through my table, and it's been very successful, and we've been doing really good with these projects. And there is no duplication of effort, I'm [reporting] to this committee, on the part of Cenaliulritt's permitting process, due to this unique setting of the region. And it does not take years to go through the permitting process. Number 0638 MR. OSCAR continued: This new proposed process will do the opposite, by forcing outside interests to step in [to] the process instead. Why should we be dictated [to] by outside interests both in legal and by environmentalists? My people prefer a localized process rather than someone from outside. In retrospect, they fear that the state DNR might bulldoze itself to their livelihoods, and Cenaliulriit had to work hard convincing every community that DNR supports subsistence with this mapping project. These villages are saying that it will enable the state to begin using [the] subsistence-mapping project against them. They are also saying that it makes laws, similar to treaties, so that it can break them. With the habitat standards gone and with this new proposed process, the distrust has widened, quite vastly. We question how this will affect the federal coastal zone requirement and funding once the local districts are eliminated. The Cenaliulriit villages are very concerned they will not have access to prove their dependence [on] a resource in a given area with these bills, and we are therefore opposed to House Bill 191 and the companion, [SB] 143. Number 0605 CHAIR SEATON suggested, if there were subsistence, habitat, or other standards that were desired to be included in HB 191, that Mr. Oscar identify and submit those for consideration as amendments. Number 0578 REPRESENTATIVE KERTTULA said that Mr. Oscar's comments had greatly concerned her, saying, "I know that perceptions and fears can travel very fast, and particularly when you're not able to be here and watch and see compromises, and see the process work. I just want to say that before the area feels the terrible lack of trust that I feel starting already, that what you're doing, and what you're doing by involving your people through your comments, I think will have a great impact." Number 0484 CHAIR SEATON said, "Mr. Oscar might want to take a look because in his area, subsistence doesn't have one of the standards that is accepted in this bill. So, he might want to have an amendment so that the subsistence priority is adopted." Number 0462 JEFFREY D. CURRIER, Manager, Lake and Peninsula Borough, said that most people who had testified had mentioned concern for local control and the consistency issue, so he wouldn't belabor those points. He said that there had not been sufficient time allowed to analyze the materials and he requested that the process slow down to allow time for increased understanding and to give those who don't have a large staff sufficient time to react to the bill. He said [Lake and Peninsula Borough] strongly supports the concept of streamlining, saving time, and promoting projects, but mentioned that the major concern is to maintain local control and have local input. Number 0225 TOM COLLOPY, citizen, testified that so far, the administration has presented no evidence that the process being suggested will be more efficient than the current process. He noted that it would, however, remove any responsibility with regard to habitat, and for that reason, he was opposed to HB 191. Number 0157 MARY FRISCHE, citizen, testified that although she has only been in the area for approximately two years, she strongly opposes HB 191. She said it dismisses a process that gives local people a voice in government, a voice that's needed to determine how the land, shores, and coastal waters are managed. She emphasized that coastal resource protection policies need to remain open to local public input. Number 0080 R.J. KOPCHAK, commercial fisherman, testified that he has been a fisherman for 28 years, and was previously the coastal zone coordinator for the City of Cordova as a city planner. He stated that he would like to make a couple of points. [Tape ends.] TAPE 03-18, SIDE A Number 0049 MR. KOPCHACK continued his testimony as follows: The bill effectively cuts the public out of the process and, I think, neutralizes a program that has been an important component in maintaining vibrant salmon habitat throughout the state. The salmon and the subsistence resources within the state, of course, deserve all of our protection. And one of the difficulties in deconstruction of the coastal zone management program is that it further places stress within the capacity to administer these important resources and the habitats they depend on. This deconstruction is unwarranted. There is absolutely no evidence at this particular point that the ACMP program is broken. No one has made the point in any of the debate I have listened to in your committee that, in fact, ACMP is broken and needs to be repaired. MR. KOPCHACK continued: As a matter of fact, this particular bill is part of a suite of bills that, in my opinion, are designed to deconstruct protections of salmon habitat in an effort to bring rapid and accelerated development of nonrenewable resources, and again puts our salmon habitat in jeopardy. We won't see those impacts, of course, for a few years. The cumulative impacts from the deconstruction of these particular checks and balances will be the burden that my children and grandchildren will have to carry with them. All of those who support these particular bills will be taking vows at how well they've done, now, and they won't be held accountable in 20 years when the full impact of this deconstructive effort is upon us. You need to have balance; I speak for balance and you are deconstructing balance. Number 0220 BILL SMITH, Chair, Homer Advisory Planning Commission, noting that he is a former member of the Kenai Peninsula Borough Planning Commission, said that he has observed that the consistency reviews conducted by the borough are a great aid to developers, especially local developers, and he offered the following testimony: They have aided projects in getting the consistency reviews and the coordination with state and federal agencies. Eliminating this process will create delays for local development projects. In addition, the idea that local zoning regulations can be adopted to replace the enforceable policies is really not at all accurate. The Title 29 municipalities cannot enforce any of their policies with regard to the state or the federal government. HB 191 would completely cut municipalities out of being able to have any enforceable policies except on private lands. MR. SMITH continued: I don't think that's the proper process, if you're going to do something about the coastal management program. Even if the state were to adopt all of the local policies, it still wouldn't give a local voice regarding federal and state properties. Right now we have a seat at the table, and this takes it away. I don't think we should eliminate the locally adopted policies without going through a local political process. I've spoken with a lot of people at the borough - the mayor's office, the planning department, and the assembly - and none of them were consulted by the state administration about what policies to adopt and which ones to get rid of. I suggest that we really need to engage in [the] local political process before we destroy what we have built over the years, with that process. Number 0458 ALAN PARKS, commercial fisherman, testified on his own behalf and said that he has been a commercial fisherman since 1975. He provided the following testimony: All Alaskans whose (indisc.) and economies have benefited from the ACMP because of the process, consistency review, and local involvement. I oppose HB 191. HB 191 undermines local control over local resources. HB 191 will essentially cut out the public from their process. HB 191 is meant to streamline government but in fact will create more red tape. Alaska's fish and subsistence resource deserve protection, as they have since statehood. There is no legitimate evidence that the system is broken. HB 191 will remove the balance between fish protection and coastal development. I urge you to oppose HB 191 and to give local communities another opportunity to address the issues and concerns that they have. It's obvious from the testimony from the representatives from Kodiak and Lake [and Peninsula Borough] that they haven't had an opportunity to review it and get input from their local officials. As a fair minimum, hold another hearing. As an optimum result, oppose it and kill this HB 191. Number 0630 ANNE WIELAND, fisherman, testified that she has been a personal- use fisher in Kachemak Bay for 28 years, and said that she strongly opposes HB 191. She stated that it would take the local public out of what should be public process and in effect disfranchise the stakeholders. She continued that removing state and local enforceable policies is a very short sighted proposal, and if this bill passes, it will end up degrading fisheries and other coastal resources that have provided s livelihood and subsistence resources for generations. She urged that HB 191 not be passed and also that the current ACMP be retained. Number 0692 DeWAINE TOLLEFSFRUD, representing himself, said that as a proud member of an Alaskan coastal community, he strongly opposes HB 191. He stated that local management of coastal policies is critical to maintaining the health of Alaska's coastline and its inhabitants, and HB 191 would undermine local control over important resources and "take the teeth out" of regulations that have been locally determined to be detrimental to coastal resources. He told the committee that there are many negative aspects to HB 191, but in the interest of brevity, he would leave those comments to others. Number 0819 ERIC JOHNSON, Association of Village Council of Presidents (AVCP), provided the following testimony: This bill would get rid of CRSAs. There is no substitute for the role that CRSAs play in rural Alaska; they are the only regional planning and project review voice with any real authority and ability to steer the process out here. Municipalities with Title 29 zoning and land use powers are no substitute for a true regional voice in the process. People in communities out here are affected by things that occur well outside their city boundaries. As far as the option of forming boroughs goes, the legislature called for an LBC [Local Boundary Commission] study, I believe, just last year, which found that the area out here is not economically suitable for borough formation. MR. JOHNSON testified: I don't think that waiting until the region out here is economically suitable for borough formation is a very good reason to strip people out here of local control over coastal zone resources. The deference that coastal districts receive in interpreting and applying their plan is a very important part of the current ACMP. It provides local people with a lot more than just agencies listening to them. Without deference, and this bill would strip coastal districts of their deference, coastal districts cannot steer planning in their regions. The people in their regions would not need to be listened to by state and federal agencies. Number 0947 MR. JOHNSON continued: CRSAs are not environmental impediments to the Alaska economy. They are not environmental special-interest entities. Their district plans are designed with full local community involvement. CRSAs boards are elected by the people of their regions. They are not impediments to desired development in their regions. I would challenge the governor to point to what evidence he has that there are worthy projects in rural Alaska that have somehow been stopped or are unreasonably delayed by CRSA review. What this is about is local control, and that is an Alaskan value. Former DNR Commissioner Heinze testified earlier that the ACMP was needed because the [federal government] "wouldn't listen to the local people." MR. JOHNSON concluded: That's just what this legislation would do; it makes it so that state and federal agencies wouldn't have to listen to local people out here. We believe that's bad policy. We believe that the Alaskan value of local control and regional input and control on resources is critical and that we shouldn't replace a process that currently allows for bottom-up-type input, and replace it with a top-down system where large agencies can just run amuck over people. Number 1050 ALLEN JOSEPH, Vice President of Operations, Association of Village Council of Presidents (AVCP), testified as follows: My position on HB 191 is that I oppose it. The reason I oppose it is because it will take away the ability of our villages to work together to manage our coastal zones, since this bill would limit management decisions to municipalities. We all know that municipalities, their authorities are limited to what you would call city limits, and in the overall picture, municipalities and the lands they manage are tiny dots on the landscape. One example that might be worth mentioning is, in our region that's now (indisc.), one of their programs is the subsistence- mapping project. John Oscar mentioned it earlier in his testimony. The people of our region, acting through Cenaliulriit (indisc.), identified subsistence as one of the most important uses of the coastal zone. The mapping project relies on local knowledge to identify those areas of high subsistence value for planning purposes. This bill would not only do away with Cenaliulriit but also do away with our reasonable subsistence policy entirely. Number 1192 CHUCK DEGNAN, Program Director, Coastal District Coordinator, Bering Straits Coastal Resource Service Area (CRSA), testified in opposition to HB 191 and provided the following testimony: House Bill 191 eliminates CSRAs, and CSRAs are an important governmental function in our region. Our region goes from Shishmaref on the north side of the Seward Peninsula to Little Diomede, Gambell and Savoonga, and on the south side, Saint Michael and Stebbins. Our CSRA has the highest land in use for subsistence. Subsistence is a historic, traditional, and customary practice. It's an ancient economy and it's recognized, and it still works. Our CSRA was established in 1980. It's a service area, and it's the lowest form of regional government in the state of Alaska. I urge you to keep the Bering Strait Sea Authority and the other sea authorities functional. Local knowledge is a very important part of the ACMP. The projects that are reviewed and the policies that are applicable to each project are determined by location. Location is an important factor because under this bill you are taking away local knowledge and all of the efforts that local people have put into living in those communities. Number 1334 DOUG HILL, longtime Alaska resident, urged the committee to reject HB 191, saying that the due deference afforded to local decision making will be stripped away in order to allow DNR to make faster resource decisions. He said he was not against development but that he supports development that involves some stewardship. He stated that local governments and citizens will lack a consistent basis upon which to comment on projects and that coastal uses that require only a state permit will not require an ACMP consistency review under HB 191. He said that repeatedly "they tell us that they can provide fish and wildlife and habitat protection," and yet on numerous occasions the details or mechanics of what's being promoted have not been provided. He urged the legislature to ensure that Alaskans, especially Alaskans living a rural or subsistence lifestyle, have a firm understanding of HB 191 and all of the initiatives that decrease industry and governmental accountability and also decrease public participation in government. Number 1430 ROBERT ARCHIBALD testified that he has been in Alaska for 25 years and has seen the good and the bad, and is not in favor of HB 191 because currently, the statewide standards are pretty good and protect 33 different areas that are site-specific. He stated that with the [Division of Habitat and Restoration] being moved from the Alaska Department of Fish & Game (ADF&G) and with the [Forest Resources and Practices Act] "up in the air", there is a need for stewardship in the state, and HB 191 might not be the best action to take right now. He said that the ACMP has been a good plan and that perhaps it's time to determine how to best streamline the process instead of doing away with it altogether. Number 1508 NINA FAUST began her testimony by stating, "Redundancy is not always bad nor is it always failsafe." She continued by offering the following: Having both state and local oversight of enforceable standards provides two perspectives on a project - one that will provide local knowledge valuable to protect local resources. Developers say that time is money, but protecting our natural resources is money as well. Damages that could broadly affect local economies have to be considered. I don't think it's wise to go backwards on our standards, particularly by dropping the local habitat standard. We need the local knowledge; it's essential and must be retained. Development projects that receive the careful oversight provided by the ACMP are probably better projects in the end. Discovering environmental problems beforehand saves money and can make a project much more welcome within a community. By being open to the scrutiny provided by ACMP and fixing problems beforehand, a company demonstrates its willingness to be a good neighbor within a coastal area. MS. FAUST continued: I oppose both of these bills [HB 191 and SB 143] and I am also wondering if some of these major changes might end up costing the state quite a lot of money because perhaps NEPA [National Environmental Policy Act] will require environment impact statements because of the sweeping changes. I urge you to allow communities to continue in their local stewardship for the sake of their economies and the sake of their local resources. Number 1606 ROBERTA HIGHLAND, President, Kachemak Bay Conservation Society (KBCS), an organization with a membership of approximately 100 people, said the organization strongly opposes HB 191 and SB 143. She said that many coastal communities have adopted enforceable policies to protect the important sustainable resources and that local communities have come to expect that projects affecting local natural resources will be consistent with the existing state and local enforceable policies. She stated that KBCS respectfully urges that HB 191 and SB 143 do not pass, adding that the ACMP has been implemented by local communities and is working. She said KBCS strongly supports balance and asks that a good system not be dismantled. She emphasized that protection of coastal communities, local and statewide economies, and Alaska's natural resources deserve the best stewardship possible as well as continued public oversight. Number 1668 MARVIN R. SMITH, Community Development Coordinator, Lake and Peninsula Borough, provided the following testimony: I am the coastal management person for the Lake and Peninsula Borough, and I'll reiterate what the borough manager said. We just recently got this and haven't had a chance to present this to our planning commission nor to our assembly. Our planning commission acts as our coastal management policy group, and we'd like more time .... There are some specific things in it that inhibit our ability to operate. One of those is, if they eliminate the ordinances that are in effect today, which is our coastal policy program, that would basically gut our program, especially the habitat section. MR. SMITH continued: We also think that just because a federal project is considered consistent, that it's considered locally - it's not; I have examples that show that it's not. I think that local policies and local input, as I've heard many people say, have got to be considered. We appreciate that the ACMP program has been beneficial for the Lake and Peninsula Borough. We have recently been doing a mapping project, and the funding basically came from the ACMP program. That mapping project, with a partnership with the State of Alaska, [Department of Community & Economic Development], ... is identifying many natural resources and subsistence use areas. That mapping project started with a small amount of funds that we got from the ACMP program, and we're mapping 16 villages in the boroughs through the ACMP program. Those maps are replacing 20-year-old maps, and it all occurred because of the program. We appreciate comments but think that we need [more time] to look at this. This program, as it is now, is not appropriate and we'd consider looking at it closer. We appreciate the governor's attempts to streamline and think that possibly there might be some streamlining [to be] done. Number 1818 JEFF LEPPO, Attorney, Alaska Oil and Gas Association (AOGA), provided the following testimony: Alaska Oil and Gas Association was involved from the beginning, in 1977, with the adoption of the ACMP and has been very active in the last several years in regulatory-reform initiative. Just as a background, I personally have been involved in environmental permitting in Alaska for over 22 years and directly involved in the ACMP process for a number of completed and ongoing projects like the recent TAPS [Trans- Alaska Pipeline System] reauthorization of the right- of-way. Since we only have a short time here, I would like to touch on three points, quickly: one, why statutory reform of the ACMP is imperative; two, the key benefits and advantages of HB 191 over the current program; and three, the potential sources of misunderstanding or misinformation about HB 191. MR. LEPPO testified: Why reform the ACMP? From the perspective of the development community, which are the businesses that invest in new development in Alaska and therefore need to obtain federal and state and local permits, the ACMP process has become the single most problematic regulatory hurdle to responsible development in Alaska. It really bears repeating in light of some of the earlier testimony. It is, in fact, the single most problematic regulatory hurdle to responsible development in Alaska. It is a major source of uncertainty for new projects, and it results in real serious chilling effects on the economic investment in Alaska. Why? Because there are vague standards for where the ACMP applies and to what projects or what portions of projects it applies to. These are applicability and scope issues. MR. LEPPO continued: Second, there's a lack of schedule discipline. The schedule and the timeframe for the ACMP process cannot be diagramed. I appreciated the comments of Representative Berkowitz early in this, about his frustration that he had not been provided with a diagram with the existing program. The problem is, and Mary Rutherford alluded to this point - that it essentially can't be diagramed. That's not a failing of the administration. It is a very serious failing of the current system. I appreciate how frustrated the Representative is, but imagine the frustration of someone who is trying to permit a project who cannot diagram what he or she needs to go through. This program has been a significant source of litigation. The program is uncertain in terms of what restrictions apply. So, why reform it? Because it's the single most confusing, delay-prone, litigation- prone, and uncertain program in Alaska. What are the key benefits? This bill provides for the use of a specific mechanism identified in Section 13, in 46.39.010(d), that federal law says is an appropriate way to go about organizing a state program called "Network." MR. LEPPO offered one more comment about a misunderstanding and testified as follows: There has been a lot of talk about the local role, I think, that genuinely, people misunderstand how the local role has been preserved. This statute, HB 191, preserves federal grant monies to local coastal districts for research training and technical assistance. That's in AS 44.33.781. It contains a specific provision for including municipal ordinances as enforceable policies, and it expressly applies those to federal and OCS projects. That's 46.39.010(e) and (f), page 10 of your statute; and there, [pages] 9 and 10, it specifically applies these local ordinances to federal and OCS projects and it adopts, on page 10, a number of the (indisc.) enforceable policies. CHAIR SEATON interjected that these have previously been reviewed, and due to time constraints, Mr. Leppo's testimony would need to be curtailed. Number 2102 REPRESENTATIVE BERKOWITZ requested that Mr. Leppo provide concrete examples of projects that have been derailed because of the existing ACMP and also examples of projects that would be able to go forward under the new system. Representative Berkowitz pointed out that it was not mandatory that municipal ordinances be adopted; it's permissive under the proposed language in the bill. Number 2130 BOB SHAVELSON, Executive Director, Cook Inlet Keeper, said Cook Inlet Keeper was a nonprofit organization that pursues separate functions: training citizens to collect credible water quality data that helps the state comply with the Clean Water Act and commenting on water quality and habitat issues. He offered the following testimony: First, as many people have noted, there's not a documented problem here. We've heard a lot of hyperbole, but the rhetoric does not support the facts. I'd like to review some statistics from the DGC and their project reviews. This data is from the last five years of reviews. The average length of a 50-day review, with extensions, is 53.2 days. The average length of a 30-day review, with extensions, is 28.2 days. The percent of reviews extended at request of the applicant [is] 38 percent. The number of oil and gas projects on the North Slope that have taken more than one year in the ACMP review: zero. The number of oil and gas projects on the North Slope that have taken more than six months: one. The number of mining projects that have taken more than six months to review: zero. The number of mining projects that have taken more than one year: zero. That's in response to some of the comments made at the last hearing, from the development community, that the ACMP added a year or more to a variety of projects on the North Slope. I'd also like to note that the bill goes much further than eliminating duplication. Instead, it erases important and unique substantive protections. Ms. Rutherford earlier referred to the gap that would be created by the removal of the habitat standard. The habitat standard has been used as a tool by resource managers to look outside streams to protect salmon habitat. (Indisc.) [Title] 16 has been used simply to look at instream effects. The zero fiscal note - and the commissioner already noted that they have been talking to the federal officials that [there is a] need to approve of this - there is definitely going to be an environmental impact statement that is going to cost a lot of money and a lot of time to go through. So, in our opinion, this is certainly not efficient government, as we already have a program in place that is not broken. Number 2257 REPRESENTATIVE BERKOWITZ referred to the zero fiscal note, and said that from what [Commissioner Irwin] had indicated, perhaps the zero fiscal ought to be reviewed. CHAIR SEATON stated that the committee would appreciate an updated fiscal note. Number 2298 KEITH BETTRIDGE, City Administrator, City of Hoonah, testified that Hoonah is a coastal district limited by its own city limits, and therefore the coastal reviews over the past three years have been minimal, as few have impacted the city limits. Number 2352 PAULA TERRELL, Alaska Marine Conservation Council, said that the council's major concerns are fisheries and conservation, and that its membership comprises many commercial and sport fishermen. She reinforced several points, beginning with Representative Berkowitz's comment about the adoption of enforceable policies. She said that all of a community's enforceable policies are not adopted and that it's completely up to the state to decide whether or not policies are going to be adopted. This takes it out of the realm of the coastal communities, and therefore really eliminates the due deference that local communities have. She suggested that these are multiple permits that do take more time because of involving federal as well as state agencies. MS. TERRELL emphasized that nothing should be done to the habitat standard, which allows ADF&G to comment on projects that involve "out of the stream beds" - that Title 16 was in the stream, and that this is out of the stream. She said it is a very important tool, and since it is such a complex issue, she suggested that that a group of involved stakeholders composed of industry, state, federal, and so forth, work on the details and present those refinements to the legislators. She said she thought that some refinements need to be done with the ACMP but in this case, "the baby is being thrown out with the bath water." Number 2490 REPRESENTATIVE HEINZE moved to report HB 191 out of committee with individual recommendations and the accompanying fiscal notes. Number 2498 REPRESENTATIVE BERKOWITZ objected, saying that although there is room to improve upon the ACMP, the product before the committee - by the administration's own admission - is a "work in progress." He stated that one of the responsibilities of legislators is to ensure that bills are as good as [the committee] can make them, noting that, clearly, there was room for improvement on HB 191. He said that a lot of testimony had been taken but, in essence, the issues had not been addressed. He said that insufficient empirical evidence had been received to support, in good conscience, the changes recommended by the administration. REPRESENTATIVE BERKOWITZ urged the committee, rather than actually voting at this time, to hold the bill, do more work, and at the appropriate time, to act together to move the bill. He noted that the [House Resources Standing Committee] wouldn't be meeting today and that there was still an opportunity for the administration to produce evidence to support HB 191. He restated that he was willing to be persuaded to be supportive of the bill, but at this point, because enough evidence had not been presented, it was riding on a "trust me, anecdotal information" approach in a situation where there was overwhelming public testimony in opposition to the bill. He emphasized that the committee needed to listen to the public's expression of desire that "this bill should not move." Number 2593 REPRESENTATIVE SAMUELS suggested that a more appropriate venue would be the [House Resources Standing Committee]. He said he grew up in a coastal community and he understands the expressed concerns of the coastal community. He noted that the bill was far from the House floor and had a long road ahead, including three committees of referral from this point. REPRESENTATIVE BERKOWITZ confirmed that there were three committees of referral in the [House] but only one committee in the [Senate]. REPRESENTATIVE SAMUELS said he would vote to move the bill to the next committee of referral; he also said that there would be stumbling blocks ahead, and "we will all be there watching to make sure that the local communities are heard from." Number 2637 REPRESENTATIVE GUTTENBERG said the case had not been made and noted that a lot of communities had been heard from, indicating an overwhelming amount of distrust, perhaps due to confusion or from misinformation. He suggested that the committee do additional work on HB 191, but if not, he hoped that the commissioner would take to heart the requests and information that had been supplied. He noted that the committee had not received flowcharts or detailed information, as had been requested. He highlighted that the public had revealed an overwhelming desire to provide input into the coastal process. He mentioned that some but not other ordinances were being adopted, noting that Juneau currently has a habitat ordinance. He asked where the preponderance of responsibility was being placed, saying that a lot of questions had been asked but had not yet been answered. Number 2740 REPRESENTATIVE HEINZE suggested that the heart of the matter was that there was no way to obtain the requested flowchart; she referred to a former commissioner's statement of the situation being "a minefield" and said that the permitting process needs to be streamlined. She indicated that the bill could be "tweaked and adjusted" as it moves forward; she stated that she was in support HB 191. Number 2774 REPRESENTATIVE WILSON said she was concerned about the redundancy in the current process. She stated that the basic goals were not being undone; rather, the objective was to streamline the process. She said the commissioner had taken notes, and that she believed he was willing to be responsive [to what was heard in committee]. She suggested that the [House Resources Standing Committee] would have a lot of work to do on the bill; she stated that she would vote to pass the bill out. Number 2820 CHAIR SEATON expressed concern that a lot of changes had been identified as being necessary to the process, and that a lot of testimony from individual districts and villages and other areas were indicative of problems and concerns with HB 191. He said that he hoped the commissioner would incorporate information that had been heard in committee. Chair Seaton said that as a general policy, he didn't want to move bills out of committee until the work had been done, because if a bill moved out with "amend" on it, but wasn't, in fact, amended, then [the committee's] responsibilities were not being fulfilled. He said he hoped that the other committees of referral would amend the bill because sufficient concerns had been expressed, indicating that amendments were needed. Number 2900 REPRESENTATIVE BERKOWITZ said the committee had not heard from ADF&G, and fisheries issues such as habitat standards that should have been addressed by this committee had not been addressed. He said although the administration had indicated a flowchart couldn't be made, his own office staff had devised a flowchart that at least provided assistance in understanding the process; he emphasized that the administration's not providing the requested flowchart "said something" to him. REPRESENTATIVE BERKOWITZ urged the committee to hold the bill, acknowledging that it's not easy to "buck the governor." Referring to a Legislative Council suit against former Governor Knowles being argued in front of the supreme court, he told the committee he'd backed the suit because it was the right thing to do. He stressed the importance of legislature's not just putting a "rubber stamp" on what the governor does. A roll call vote was taken. Representatives Heinze, Samuels, Ogg, Wilson, and Seaton voted in favor of reporting HB 191 from committee. Representatives Berkowitz and Guttenberg voted against it. Therefore, HB 191 was reported out of the House Special Committee on Fisheries by a vote of 5-2. ADJOURNMENT There being no further business before the committee, the House Special Committee on Fisheries meeting was adjourned at 11:05 a.m.