Legislature(2003 - 2004)
03/17/2003 08:40 AM House FSH
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISHERIES
March 17, 2003
8:40 a.m.
MEMBERS PRESENT
Representative Paul Seaton, Chair
Representative Peggy Wilson, Vice Chair
Representative Pete Kott
Representative Ethan Berkowitz
Representative David Guttenberg
MEMBERS ABSENT
Representative Cheryll Heinze
Representative Ralph Samuels
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."
- HEARD AND HELD
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
WITNESS REGISTER
KAROL KOLEHMAINEN, Program Coordinator
Aleutians West Coastal Resource Service Area (AWCRSA)
POSITION STATEMENT: Testified on HB 191, requesting that
legislation be modified to allow the CRSAs to exist.
REPRESENTATIVE BETH KERTTULA
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Asked questions and commented on HB 191.
WILLIAM (BILL) JEFFRESS, Director
Division of Governmental Coordination (DGC)
Office of Management & Budget
Juneau, Alaska
POSITION STATEMENT: Presented HB 191, which was sponsored by
the House Rules Standing Committee by request of the governor.
JANET BURLESON BAXTER, Acting Special Assistant
Office of the Commissioner
Department of Natural Resources
Juneau, Alaska
POSITION STATEMENT: Highlighted key components of HB 191.
BRECK TOSTEVIN, Assistant Attorney General
Environmental Section
Civil Division (Anchorage)
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Provided an overview of the sectional
analysis for HB 191.
TADD OWENS
Executive Director
Resource Development Council (RDC)
Anchorage, Alaska
POSITION STATEMENT: Testified in support of HB 191.
JUDY BRADY
Alaska Oil and Gas Association
Anchorage, Alaska
POSITION STATEMENT: Testified that HB 191 moves toward the
original intent of the ACMP.
NOAH NAYLOR, Planning Director
Northwest Arctic Borough
Kotzebue, Alaska
POSITION STATEMENT: Testified that HB 191 hurts the Northwest
Arctic Borough in several ways.
WALTER SAMPSON, President
Northwest Arctic Borough Assembly
Kotzebue, Alaska
POSITION STATEMENT: Testified on HB 191, suggesting that the
overall process include public testimony.
ACTION NARRATIVE
TAPE 03-14, SIDE A
Number 0001
CHAIR PAUL SEATON called the House Special Committee on
Fisheries meeting to order at 8:40 a.m. Representatives Seaton,
Wilson, and Berkowitz were present at the call to order.
Representatives Kott and Guttenberg arrived as the meeting was
in progress. Representatives Samuels and Heinze were excused.
Also present was Representative Kerttula.
HB 191-COASTAL MANAGEMENT PROGRAMS
CHAIR SEATON announced that the first and 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 0012
CHAIR SEATON said that public testimony would be heard at the
beginning of the meeting while awaiting for a quorum to
assemble.
Number 0073
KAROL KOLEHMAINEN, Program Coordinator, Aleutians West Coastal
Resource Service Area (AWCRSA), said that committee members
might think that her interest is in saving her job, but the
reason for her testimony is because of the seven elected
officials of the [AWCRSA] and all that they represent. She then
provided the following testimony:
Geographically, they represent the entire western
Aleutian area from Unalaska Island west to Attu
Island, an area that is 20 to 60 [miles] in width and
roughly 1,000 miles long. It is bounded by the
Pacific Ocean to the south and the Bering Sea to the
north and has a wealth of natural resources including
some of the richest fishing grounds in the state.
Like the geography, the communities of the region are
also diverse. Unalaska, the only Title 29 community
and the number one seafood processing port in the
nation for may years, has a population of over 4,000
people, and Nikolski, a tribal government, has 30.
Both of these communities contribute members to the
AWCRSA board.
Article 2 of Alaska Statute 46.40 provides the
authority for coastal management in the unorganized
borough and allowed the people of the western
Aleutians to form a CRSA [Coastal Resource Service
Area]. Sixteen years ago, in 1987, the AWCRSA was
established by a vote of the people of the unorganized
western Aleutian area. They went through the process
and gave of their time to develop a coastal management
plan for the region. The plan was signed into law and
provides representation of the local interest in state
and federal permitting decisions.
The plan has procedures and policies, not to prevent
development, but to guide development activities
within the coastal zone boundary. Recently we have
been updating the plan, a massive undertaking
involving mapping of the resources of the entire area;
collection of census data and cultural, historic, and
economic information; and the development of goals and
objectives for the region, culminating in the
development of coastal policies. All of this work was
accomplished by a volunteer board and using federal
funding. Because the CRSA exists in the unorganized
area, it serves as a local authority for the entire
area, and the plan is the recognized information
source for prospective developers and oil spill
contingency planning.
Number 0348
MS. KOLEHMAINEN continued:
If I have gone on at length about the area, it is
because I care deeply about the region and respect the
efforts of the AWCRSA board. As previously stated,
the board is strictly voluntary and its members have
contributed many hours over many years to develop what
it has become. I would like to add that I am the sole
employee, and the entire program is federally funded
with monies passed through the state. Now, with a
stroke of the pen, this political subdivision of the
state will cease to exist.
I have reviewed the proposed legislation and some of
the supporting material, and wish to continue by
specifically addressing some of the assertions.
First, to state the Title 29 municipalities will
retain their existing land-use authorities and
regulate private land-use activities is correct, but
doesn't provide the complete picture. In the AWCRSA,
the Title 29 municipality, Unalaska, does not have a
coastal management program; that role is provided by
the CRSA. I suspect this is true in the other
unorganized borough areas as well. Anyone who has
been involved with the rewrite of a comprehensive plan
knows that it does not happen overnight, and it will
take much time and effort for a community to develop a
coastal program and be eligible for the financial
benefits of participation. Unalaska represents a mere
116 square miles of a much, much larger area.
Number 0495
MS. KOLEHMAINEN continued:
Next, to say that DNR [Department of Natural
Resources] is authorized to adopt local ordinances as
state enforceable policies for federal reviews also
seems to gloss over the very real concern of
elimination of a local presence in permit decisions.
I guess that is the ultimate in streamlining - the
state makes the decision. I believe another word for
that is centralization, but then that word is much
less palatable.
And last, to say that the adoption of certain coastal
policies for state decisions will continue to
recognize a local input is just the second point, made
in an only slightly different way. When that happens,
you no longer have local policies; you have state
policies, and only the ones that were deemed
acceptable, apparently.
Number 0552
MS. KOLEHMAINEN continued:
Now that I have said all of this, I would like to
conclude by admitting that we recognize that passage
of this legislation appears inevitable given the
current political climate. In HB 191, Section 10, the
legislation purports to provide a program of research,
training, and technical assistance to coastal resource
districts, including the direct granting to the
districts. However, Section 16 repeals [AS] 46.40.120
through [AS 46.40.180] eliminating the coastal
resource districts, the CRSAs, which allow huge
political subdivision of the state, and includes many
of the communities that could benefit the most from
coastal grants.
We respectfully request that the legislation be
modified to allow the CRSAs to exist permanently as
coastal district areas or a similar functional area,
or for a period of time long enough to allow the work
that has been done to be redirected in a way that will
let the areas develop meaningful authority in an
acceptable and beneficial form.
CHAIR SEATON noted that Ms. Kolehmainen's written testimony
would be distributed to committee members.
Number 0684
REPRESENTATIVE KERTTULA, Alaska State Legislature, inquired as
to the kinds of projects [AWCRSA] has commented on during the
past year or so. She asked for examples of the sorts of things
in which it would no longer be participating.
MS. KOLEHMAINEN responded that some projects that come to mind
are the development of the small-boat harbor in Unalaska and the
remediation activates on Amchitka Island, for which she has been
the resource and information source person for national missile
defense activities at Chiniak and Adak and for the hydropower
project in Atka. She added that the benefit of the CRSA is not
just in providing comments, but also as an entity that provides
goals and objectives and as being a tremendous resource to the
area that might not otherwise have that resource.
REPRESENTATIVE KERTTULA asked for a description of Ms.
Kolehmainen's interaction with the coastal zone project,
inquiring about the working relationship as evidenced by how she
receives information from project managers.
Number 0824
MS. KOLEHMAINEN said she has been with the program for over four
years, and the biggest benefit is through the Division of
Governmental Coordination (DGC). She described that she attends
a pre-application meeting with the resource agencies,
developers, and affected communities - if they choose to
participate - and discusses what the project will include. She
said they are the local experts and express not only the
concerns of the community, but also the advantages and
disadvantages of certain types of development. She said that
the CRSA or any coastal district could be of benefit to the
developer during those early meetings when the plans are being
formulated and developed.
CHAIR SEATON announced that there was a quorum and that he would
return to hearing public testimony after hearing consideration
of HB 191.
Number 0918
WILLIAM (BILL) JEFFRESS, Director, Division of Governmental
Coordination (DGC), read from a statement of purpose for HB 191,
which was sponsored by the House Rules Standing Committee by
request of the governor. That document read [original
punctuation provided]:
Under the authority of article III, sec. 18, of the
Alaska Constitution, the Governor has transmitted this
bill to reform and streamline the Alaska Coastal
Management Program (ACMP). This legislation is
premised on the statutory changes contained in
Executive Order 106, which was presented to you on
February 12, 2003. Executive Order 106 would transfer
responsibility for the ACMP program from the division
of governmental coordination in the office of
management and budget to the Department of Natural
Resources.
The Alaska Coastal Management Program was first
enacted in 1977 in order to participate in the federal
Coastal Zone Management Act of 1972. The federal
program is voluntary, and encourages states to receive
funds and the opportunity for federal consistency
review. Federal consistency review enables the state
to apply its authorities to projects located on
federal land and the federal outer continental shelf
where otherwise it would be preempted by federal law.
Number 1021
MR. JEFFRESS went on to say:
The goal of this legislation is to create a new
coastal management program that retains the benefits
of the federal act but eliminates the duplication and
complexities built into the present ACMP. This bill
would achieve this goal by choosing the simplest of
the three management techniques allowed by the federal
act. The bill provides certainty and predictability
to the ACMP process by clarifying the standards and
responsibilities for program implementation.
The central streamlining concept of the bill is the
reliance on existing state statutes and regulations as
the enforceable policies of the ACMP. The current
duplicative consistency review process in AS
46.490.096 and 6 AAC 50 is eliminated by simply
relying on the issuance of current state permits by
the resource agencies as the means of determining
whether an activity is consistent with the ACMP. The
bill would eliminate district coastal management
enforceable policies but retain a local role in three
ways. First, Title 29 municipalities would retain
their existing land use authorities to regulate
private activities within their jurisdiction. Second,
the bill authorizes the Department of Natural
Resources (DNR), as the implementing agency, to adopt
local ordinances as enforceable policies to be applied
in consistency reviews of federal projects and Outer
Continental Shelf (OCS) development. The DNR would
consult with the local government when interpreting
and applying local ordinance as part of a consistency
review. Third, the bill would specifically adopt
certain existing coastal district policies for federal
OCS development as state enforceable policies.
Coastal resource service areas in the unorganized
boroughs would no longer exist. However,
municipalities within the unorganized boroughs could
participate in both funding and regulatory aspects of
the program. The way coastal communities participate
in the program will now focus on sustainable resource
and economic development.
The bill would also eliminate the Coastal Policy
Council, but would create a Coastal Program Evaluation
Council to submit a report to the Governor on the
implementation of these reforms. The council would
sunset July 1, 2005.
Number 1221
REPRESENTATIVE BERKOWITZ asked if analysis had been done,
perhaps in writing, that could be shared with the committee -
analysis done prior to making the determination that coastal
management was in need of streamlining.
MR. JEFFRESS responded that during the past week, on several
occasions during testimony on Executive Order 107 (EO 107), a
cross-representation of different interest groups had
highlighted the need to modify the ACMP program. He said that
almost every transition team that was put together by the
governor, except for the Department of Corrections, included the
issue of revamping the ACMP program.
REPRESENTATIVE BERKOWITZ said he had hoped that the basis for
this large of a change would be more substantial than anecdotes,
because his experience in listening to testimony on EO 107 was
that there was also considerable testimony in the other
direction as well. He referred to there being discussion of
moving towards the "Virginia model" and asked if a side-by-side
comparison had been done to examine how the Virginia model would
work in Alaska in terms of timelines, costs, et cetera, to
demonstrate that the new model would be quantitatively or
qualitatively better.
MR. JEFFRESS suggested that Breck Tostevin was available to
respond to that question.
Number 1371
REPRESENTATIVE KERTTULA began by acknowledging the difficulty
involved in Mr. Jeffress's being new at his job and immediately
working with the transition. She stated that one of the jobs
that the coastal management program has always undertaken is to
work with local people in the coastal districts themselves. She
said she wasn't hearing the "normal, same kind of interaction"
with coastal districts, from this plan, as she has seen
throughout the years. She asked what had been done, before
introducing this bill, with the coastal districts, and asked if
they were involved with the writing of the bill or if outreach
had been done to explain what the bill does, to those some 38
local districts.
MR. JEFFRESS acknowledged that he was new to the position and
was not aware of all of the communication that had gone on with
the coastal districts.
REPRESENTATIVE KERTTULA said that perhaps somebody else could
speak to that. She then asked what the current plan was
regarding involving the districts in order to take their
comments and concerns into account. She wondered if people
would be responding during legislative hearings or if the
administration would be reaching out [to communities].
MR. JEFFRESS responded that he thought it was a combination of
both of those approaches, saying that they wanted people to
respond to the legislative process but he had also received
feedback from some of the coastal districts and some of the
members of the ACPC.
REPRESENTATIVE KERTTULA asked if any meetings were planned for
coastal districts or if an overall review of the legislation was
scheduled to ensure that their wishes were understood.
MR. JEFFRESS said that there are plans, with the help of Mr.
Tostevin, to brief all of the DGC staff so that everyone is on
the same page so that the process of reaching out to the
communities and making sure that everyone understands the
current legislation can begin.
REPRESENTATIVE KERTTULA said she found it troubling that
staff had not previously been briefed and was glad that plans
were underway for this to happen, because staff would be
responsible for dealing directly with the district.
CHAIR SEATON asked if this was basically a new program or if it
was a change to the existing coastal zone management program.
MR. JEFFRESS responded that this would be a "major overhaul of
the existing program." He said one area under review is that
the coastal zone makes up quite an area of Alaska, but within
the context of the whole state, it is a small portion. He
continued that throughout the state, a lot of permitting is
going on and a lot of the habitat for both anadromous streams
and other choice habitats exists in the interior of the coastal
zone. With the existing rules, regulations, and statutory
authority that's given to the resource agencies, most habitats
have been protected. The view is that instead of duplicating a
process of policies, this could be standardized and then
existing statutory authority and regulations could be relied
upon to continue to protect the resources. This would also
include those coastal zones. The resource agencies have already
demonstrated that they can adequately protect habitat and other
resources in the Interior and coastal zone management areas.
Number 1696
CHAIR SEATON asked if there would be local-area input for areas
outside of the municipal boundaries and questioned how that
would take place if the local service areas were "done away
with."
MR. JEFFRESS replied that with DNR as the lead agency, the
streamlining process would achieve more consistency, and there
would be a process in which all of the resource agencies would
go through the public process, which would include public input.
He said that if there's a single state permit, there would be
consistency in the issuance process.
CHAIR SEATON asked if there is a requirement that substantial
changes to the coastal zone management plan requires
notification to NOAA [National Oceanic and Atmospheric
Administration] and requires public input and (indisc.) on the
process. He noted that he hadn't seen any other notice and
asked if this legislation was, at this point, being considered
as notice to the public.
MR. JEFFRESS referred that question to Mr. Tostevin.
Number 1799
REPRESENTATIVE BERKOWITZ asked about comments made regarding
duplicative processes under the current model and asked for
identification of where that duplication exists.
MR. JEFFRESS responded that some of the enforceable policies are
very similar to the state standards and that it's "an effort of
interpretation of which one would apply." He said that several
of the coastal zone enforceable policies are almost taken
verbatim out of the state standard. When those are put into a
permit or a condition, he said, they are both serving the same
purpose, this is, trying to get away from duplicative process in
areas that are subject to different interpretation.
REPRESENTATIVE BERKOWITZ asked if those areas of duplication
could be identified, since a finite number are involved.
MR. JEFFRESS replied that he would imagine this to be so.
REPRESENTATIVE BERKOWITZ said it would be helpful, in learning
more about the process, to see a list of where such duplication
exists.
MR. JEFFRESS suggested that Mr. Tostevin could provide examples.
Number 1912
REPRESENTATIVE WILSON asked if the duplication process made the
whole process more burdensome by taking additional time in order
to get everything in place.
MR. JEFFRESS replied that this was correct and that sometimes it
was a matter of interpretation of local policies. He said they
were looking at the history of permitting in some areas outside
of the coastal zone. He said they have the statutory authority
and the regulations in place to do the job of protecting the
resources. He said the question was, "Why are we putting
another layer on top of those?"
REPRESENTATIVE WILSON asked for an idea of the time period that
was involved, wondering if it was it two weeks, two months, or
two years.
MR. JEFFRESS said he personally didn't have an answer to that,
but that perhaps someone from DGC could provide further
information.
Number 2028
CHAIR SEATON referred to the comment of state statutes as being
basically identical to the requirements of local enforceable
policies and asked why an entire series of enforceable policies
would be adopted if they were already incorporated in state
statutes.
MR. JEFFRESS stated that he probably misspoke in saying that all
were duplicative and that obviously there are some on the North
Slope concerning whaling in which state statutes are not in
place. He said the administration tried to go through the
existing enforceable policies and pick out the ones that make
sense and that have consistently been used and also represent
local communities where that activity is occurring. He said
that those are the ones that are embedded in this bill.
CHAIR SEATON said that the committee's list seems to refer to
North Slope policies and asked if the other regional policies
that differ from the North Slope were also included.
MR. JEFFRESS said a lot of those were embedded in the bill
itself, representing other coastal districts.
REPRESENTATIVE KERTTULA said that on a broad level, her
experience has been that any time there has been a dramatic
change in the program, there has been a lot of planning and work
done ahead of time with the Office of [Ocean and] Coastal
Resource Management (OCRM). In that way, approval is gained and
federal consistency isn't jeopardized. She asked what contact
DGC has had with [OCRM] to see if the program was on the right
track.
Number 2157
MR. JEFFRESS said they have talked to plan administrators in
Washington, D.C., and that quite a bit of flexibility is built
into the approval of these (indisc.) coastal management
programs. Once the legislation is passed or comes to the point
of being reviewed, then they will be able to identify if there
are any shortfalls, but as it stands, they are open to moving
forward. In response to Representative Kerttula's question as
to whether this legislation had been sent to them, Mr. Jeffress
referred to Mr. Tostevin for verification of that.
Number 2205
REPRESENTATIVE BERKOWITZ suggested that a "decision flowchart"
showing the workings of the current system and also the future
system would be helpful and asked for such a flowchart.
Number 2218
JANET BURLESON BAXTER, Acting Special Assistant, Office of the
Commissioner, Department of Natural Resources, testified that HB
191 streamlines the permitting process by almost exclusively
relying on existing permit requirements to establish the ACMP
standards. She highlighted key components by providing the
following testimony:
Except for federally sponsored projects and projects in the
Outer Continental Shelf, the bill eliminates the need for a
separate consistency review beyond the individual state
permit decisions.
The bill does consistently reduce the coastal management
enforcement policies. It eliminates the statewide
standards found in 6 AAC 80. It significantly reduces the
number of local enforceable policies. It only applies
local enforceable policies to federally sponsored projects
and projects in the OCS.
The bill emphasizes local governments' use of their own
local land-use controls. There's no state application of
local policies except on federally sponsored projects and
projects in the OCS, where local land-use controls would
normally be preempted by federal law.
It eliminates the Coastal Resource Service Areas. Since
application of local policies is very rare, there is little
justification for financially supporting these entities;
future support for coastal communities should focus on
responsible resource development and sustainable economic
development.
It eliminates the Alaska Coastal Policy Council. Without
local plans to approve, or the proper implementation of
local plans to ensure, there is little justification for
retaining this body. The bill does provide for the
evaluation council for a two-year period to evaluate the
program - and that would sunset in two years.
Number 2348
CHAIR SEATON asked if she had said that this significantly
reduces the number of enforceable policies.
MS. BAXTER confirmed that this was so.
CHAIR SEATON then asked if for most areas of the state other
than the North Slope, which has "many of theirs" included in
this plan, basically all of the local input outside of the
municipalities, would be eliminated.
MS. BAXTER replied that Mr. Tostevin would address this question
in more detail. However, she said it does provide for some of
the enforceable policies to be used for consultation through the
normal DNR public-input process.
CHAIR SEATON said he was trying to figure out if the enforceable
policies were being significantly reduced - which are local
determinations on a regional basis - and how projects work
within their areas. He questioned how to incorporate regional
concerns outside of a municipal boundary in the state
development projects.
MS. BAXTER referred to Mr. Tostevin.
CHAIR SEATON noted that she had said this only applied to
federal lands, and wondered if it was correct that even the
enforceable policies that are adopted are not going to be
enforceable on state projects but only on projects that occur on
federal lands (indisc.).
MS. BAXTER said she understood that yes, the enforceable polices
that are in the bill would be addressed to federal projects and
that single projects by agencies would use their own
stipulations to cover issues.
Number 2475
CHAIR SEATON asked if the state's position was that all state
statutes or all these regulatory areas currently embody the
coastal zone management policies and if they are consistent with
coastal zone management as it exists today.
MS. BAXTER said that as Mr. Jeffress had said earlier, "we do
feel that we have protected the habitat values in the anadromous
streams through outside the coastal zone as well as inside the
coastal zone, and those protections would exist statewide."
CHAIR SEATON asked if coastal zone management was only for the
protection of anadromous streams.
MS. BAXTER said, "What we think is that we have protected values
outside the coastal zone with the state standard that DNR and
DEC [Department of Environmental Conservation] has, and we feel
that by applying those same standards within the coastal zone,
we would protect those habitat values as well."
CHAIR SEATON suggested that this was confusing because there are
a lot of values other than salmon habitat values.
MR. JEFFRESS said that what is being bypassed is that when
resource agencies issue permits, there is a public notice
process and public hearings. He said there is also an
opportunity on some of the permits - that resource agencies have
to mitigate concerns that stakeholder groups or local
communities may have. He said this is a statewide process that
exists right now, and there is one process for ACMP and one
process for the state permits. He said that they can streamline
this process by just having a single notice and the opportunity
for the public to participate and also for the agencies to
consider what mitigation may be appropriate.
Number 2590
REPRESENTATIVE WILSON reflected that this meant that there's a
place in the process, if this goes into effect, in which local
areas and local stakeholder groups could step up to the plate
and fully explain their concerns.
MR. JEFFRESS replied that was exactly right and said that it was
confusing as to why there's redundancy with the ACMP program
when people on the interior of the coastal zone have to go
through public notice and go through comment periods and
mitigations with the agency.
REPRESENTATIVE WILSON said her understanding was that when the
transition teams from every single area across the state
submitted their concerns and suggestions to the governor, that
was taken into consideration and was part of this process. She
asked if stakeholders in every area would get a chance to
listen, put in their concerns, and give full input into this;
she asked if things would happen as they have, but there just
wouldn't be duplicity.
Number 2674
MR. JEFFRESS said this was correct. He said that the transition
teams were looking at efficiency in government and the economic
engines that the state needs in order to have sustainable
resource development, meeting the goals of the constitution.
When several of the transition groups highlighted that there was
a perception that the ACMP process was a stumbling block, that
was a motivation to move forward with this legislation. He said
he had mentioned this to other committees, that it's hard to
quantify how many opportunities the state has missed because the
process seems so daunting, and that they are trying to simplify
the process so that some of the opportunities can be taken
advantage of.
REPRESENTATIVE WILSON asked if somebody could explain the normal
public process that would happen before a permit would be
granted.
MR. JEFFRESS said that normally the applicant has a pre-
application meeting. He said "let's just take a generic permit
anywhere in the state." There is a pre-application to define
what the role of industry is in providing information that
agencies need to make a decision. Then the agencies review and
make sure the application is complete, and then there is public
notice. There may or may not be enough interest to hold a
public hearing, but during that public comment period a request
can be made for a public hearing or a public meeting to further
disseminate some of the information about the project or to take
testimony on it. Then there would be specific regulations
governing the permit, and the agencies would then take that
information and make their determination.
REPRESENTATIVE WILSON asked if, as a general process, there is a
certain time period before and after public notice, allowing for
a chance to pull information together.
MR. JEFFRESS answered that was correct and that there were
different regulations governing public notice on DEC and DNR
permits, but that generally the notice for the public comment
period was 30 days, although sometimes that was extended. He
said that usually agencies respond to comments and some of that
is incorporated into the final decision.
Number 2822
REPRESENTATIVE WILSON asked if the following was a correct
understanding of the overall process: first, there's a pre-
application meeting and there's the agency review of that, and
then there's a public notice of 30 days or longer, and there's a
public hearing and public comment process that includes
testimony, and then the agency takes that information and makes
a determination.
MR. JEFFRESS said that this was a simplified overview of the
process.
REPRESENTATIVE WILSON asked if additional steps would be
included in addition to what she had said.
MR. JEFFRESS confirmed that this was correct.
REPRESENTATIVE WILSON then commented that this seemed to be
fairly complete.
CHAIR SEATON referred to the comment that the coastal zone
management program has been perceived as a stumbling block, and
asked if a list of projects that have had problems or haven't
gone forward would be provided.
MR. JEFFRESS said that some of the permitting process is so
daunting that opportunities have been missed regarding potential
resource development "for the small mom-and-pop operators" -
opportunities that would provide some economic benefit to the
state. Regarding other projects that have been permitted, he
said "time is money" and some of the delays for additional
information have involved a number of agencies involved in these
multi-agency permits; the agencies didn't think that the
information was pertinent to making the decision and there have
been delays on those permits. He said the intention is to
streamline this and minimize those delays.
CHAIR SEATON said he was hearing from the committee that what
was desired was a timeline and also examples of delays of
permitting projects.
Number 2952
REPRESENTATIVE KERTTULA asked if anyone was planning on doing an
overview for the committee that would increase understanding of
how the program works. She said that without such information,
there was a real vacuum regarding how the program is developed,
how the permits are processed, and general permitting that
occurs right now. She requested an overview because otherwise
"this is a real disservice to the committee," since there would
be no way to judge the changes in order to determine if the
changes were too broad or adequately specific.
TAPE 03-14, SIDE B
REPRESENTATIVE KERTTULA continued that her second area of
concern was that she understood Title 16 as only bank-to-bank,
instream - as "that's where the jurisdiction is" - and that she
has seen cases that have been a (indisc.) of developers,
especially along transfer facilities where, under coastal
district policies and under habitat standards, ways have been
developed to protect streams that are broader than Title 16
allows. She said she was concerned about this and asked, "Are
we going to be certain that under this statute and proposal that
we are actually going to be protecting the habitat correctly?"
She wondered how this was being envisioned. She agreed that
changes needed to be made, but said that there are certain
instances where the coastal zones provide not only the kind of
help to applicants that is needed, but also protection that
isn't always available from the agencies.
Number 2927
MR. JEFFRESS responded that protection offered in the interior
of the coastal management area was being looked at. He said
that Title 16 is bank-to-bank. With the experience of DNR as
the lead agency of the multi-agency teams that have been put
together, those outside of the stream bank considerations have
been noted and taken care of. He said "one of the pluses for
having DNR as the lead resource agency" was that those different
disciplines could be pulled together to cover the concerns.
REPRESENTATIVE KERTTULA commented in favor of the team idea
because it works and also empowers people, but she said she
wanted to know where the statutory authority is, as well. She
reiterated that it's important to understand how the program
currently works in order to assess the correct changes that need
to be made.
CHAIR SEATON expressed concern regarding the second-to-the-last
question that was submitted to DNR. He said there seems to be
some confusion because that question asks why the habitat
standard has been eliminated from ACMP, the postulate being that
this was a tool important to ADF&G in allowing for comment on
what happens outside of streams in the riparian zone. He asked
if "this has not been the tool that has allowed Fish & Game
[ADF&G] to go beyond the stream bank into the riparian zone and
that there's another tool that's going to be used?"
Number 2833
MR. JEFFRESS replied that he was referring to the habitat tool
as not being statewide but as being coastal zone statewide, that
is, interior to the coastal zone, which is considerable area, -
that habitat standard didn't apply. The existing statutory and
regulatory authority given to the Alaska Department of Fish &
Game (ADF&G) and the other resource agencies was protecting
habitat, outside of the stream bank-to-stream bank. He said
that's been true in the Interior and some other areas where
there's a redundancy of programs. Statutory and regulatory
authority that is truly statewide is some of the toughest in the
nation, and Alaska has a track record of proving that habitat
has been protected. He added that what would further augment
the process is this team concept of pulling the resource
agencies together and making sure that specialty areas were
covered. He added that this would be part of the public
process.
CHAIR SEATON asked if this was the "Forest Practices Act"
[Alaska Forest Resources and Practices Act] that basically gave
that statutory authority in the riparian zone outside of the
stream banks or if some other statutory authority had been
provided.
MR. JEFFRESS said the Forest Practices Act gave that authority
when dealing with the forest, but the habitat standard of the
ACMP program is what gave authority in the coastal zone.
CHAIR SEATON asked, if the standard is being eliminated in the
coastal zone, whether the Forest Practices Act would now give
authority within the coastal zone.
MR. JEFFRESS replied that existing statutory and regulatory
authority that is truly statewide currently give authority.
With DNR as the lead agency and a multidiscipline team put
together, there can be certainty that those concerns will be
addressed. He said the attorney general's office can determine
whether or not there is existing statutory authority to allow
for that.
REPRESENTATIVE BERKOWITZ asked who drafted the legislation.
MR. JEFFRESS replied that it was drafted by Breck Tostevin.
Number 2680
BRECK TOSTEVIN, Assistant Attorney General, Environmental
Section, Civil Division (Anchorage), Department of Law, said
that he had hoped to go through the sectional analysis in a
systematic way in order to address some of the questions.
REPRESENTATIVE KERTTULA suggested that the Mr. Tostevin walk the
committee through how the program works now and from where the
concerns have come. She expressed the need for committee
members to understand how coastal districts and the consistency
process works. She noted that she has heard concerns with
regard to the habitat standard, due deference, and what happened
in the past with elevations and the ACPC, and the evolution.
MR. TOSTEVIN explained that the basic premise of the original
program was that there would be a networked program, not another
state program, whereby a permit wasn't a permit. However, the
state would use existing state authorizations and permits to
review activities in the coastal zone. The statewide standards
applied in the coastal zone were put into regulation, 6 AAC 80,
by the DGC. The ACPC also created some standards whereby
district programs were created. To implement the program there
was, as developed over time, a consistency review process. The
consistency review process [required] that an applicant fill out
a coastal questionnaire, which identified the state and federal
permits that were needed. The Division of Governmental
Coordination would coordinate that coastal review if there were
more than two state permits or a federal permit was involved.
If there was only one state permit, then that single state
resource agency would perform the review. Essentially, the
permitting authority for each resource agency would go through
its notice and at the same time send notice to coastal districts
and the public seeking information regarding the consistency
under the coastal program.
MR. TOSTEVIN turned to some of the difficulties. Although the
state permit standards and the state environmental laws are
generally clear, the state standards are policy and thus more
general in nature, as is often the case with the district
policies. He noted that often the district programs simply
incorporated the state standards. Therefore, there were
problems with applying the standards twice, as well as problems
interpreting the standards.
Number 2395
REPRESENTATIVE WILSON commented that the aforementioned process
sounds very frustrating and time-consuming. She surmised that
this process would take a mom-and-pop operation out of
commission for quite some time.
MR. TOSTEVIN acknowledged that this is a complex process. He
related that another criticism has been that the state agencies
aren't allowed to issue a permit until the consistency review is
completed. Therefore, everyone is waiting until the last permit
is ready to be issued. Under this legislation, each resource
agency would issue its permits as it could work through them,
and once the final permit was issued, the consistency review
would be issued.
Number 2324
REPRESENTATIVE BERKOWITZ inquired as to how many projects, on an
annual basis, ACMP reviews. He also inquired as to the sort of
projects that ACMP reviews.
MR. TOSTEVIN said that he probably wasn't the best person to
provide numbers. However, [ACMP review] applies to any project
on the coastal zone that requires a state permit or
authorization or a federal permit or authorization.
REPRESENTATIVE BERKOWITZ surmised, then, that an individual
constructing a dock would have to obtain a permit.
MR. TOSTEVIN replied yes.
REPRESENTATIVE KERTTULA requested a breakdown of how many
projects actually go through the complete review. She indicated
her understanding that many of the projects are brought over
with the "ABC list" and merely reviewed as a general permit.
"This is a little overblown because many projects ... go through
just ... a general permit and are out," she remarked.
MR. TOSTEVIN agreed some do.
Number 2236
MR. TOSTEVIN turned to the document entitled "Sectional Analysis
of HB 191/SB 143," which is included in the committee packet,
and paraphrased from it. With regard to Section 13, Subsection
(a), Mr. Tostevin explained that the CZMA of 1972 provides two
benefits to the state because it offers funding as well as to
settle the consistency review process. Therefore, the state is
allowed to have a say in federal activities. He pointed out
that there are three types of federal consistency reviews. He
mentioned that the committee packet should include a chart with
his sectional analysis. He noted that Section 13, Subsection
(c) is an existing provision that refers to the coastal resource
district, the definition of which has been expanded to include
municipalities in an unorganized borough.
Number 2051
CHAIR SEATON related his understanding that HB 191 eliminates
the CRSAs and the ACPC, and puts in place a new organization of
the coastal zone management district.
MR. TOSTEVIN explained that there is an existing coastal
resource district definition. A coastal resource district can
receive coastal management monies and is defined as a borough or
municipality. The idea is that those resource districts would
use the coastal management monies for planning within its
boundaries and use the [borough's or municipality's] own land
use ordinances to regulate activities within the district's
jurisdiction.
CHAIR SEATON surmised that all areas outside municipalities or
boroughs can't receive any funding under this proposed
mechanism.
MR. TOSTEVIN said that is correct. For areas in an unorganized
borough that are outside city limits, there isn't funding
available. He suggested that perhaps the option would be to
create a borough.
REPRESENTATIVE BERKOWITZ asked if the legislature could act for
the unorganized boroughs.
MR. TOSTEVIN interpreted Representative Berkowitz to be asking
whether the definition of a resource district could be amended
such that other entities could be included if the legislature so
desired. Mr. Tostevin reiterated that the idea behind the
legislation was to provide money to those who had zoning
functions in order to participate in the program.
CHAIR SEATON surmised, then, that this legislation would only
apply to those boroughs that exercise zoning functions.
MR. TOSTEVIN replied no and specified that any borough or city
is eligible; however, the program is implemented through
ordinances at the local level. He said he assumed that a
borough or city could have an ordinance regulating a land-use
activity without a comprehensive zoning ordinance.
Number 1857
REPRESENTATIVE KERTTULA inquired about how areas such as the
Matanuska-Susitna [Borough], which doesn't have comprehensive
zoning.
MR. TOSTEVIN clarified that the legislation doesn't require
comprehensive zoning, but simply specifies that DNR can use a
government's ordinance as an enforceable policy for federal
activities and OCS development. Therefore, if an area wants to
participate in imposing such requirements, an ordinance would be
used to do so. Otherwise, the municipality or borough would use
its zoning and land-use authority as it saw fit in expressing
its concerns within its boundaries, which is the case now.
CHAIR SEATON surmised, then, that those in unorganized boroughs
wanting a restriction would need to come to the legislature to
request a specific statute to regulate that specific
[activity/use] for the people of that unorganized borough area.
He asked if the statute would be specific to each project.
MR. TOSTEVIN responded that's correct. He reminded the
committee that the premise of this [legislation] is that the
public has a right to participate in the permitting process.
Number 1735
REPRESENTATIVE KERTTULA pointed out that if the department
adopts the local district's zoning, then those will apply
against the federal projects that are federally permitted. She
asked if [the local district's zoning] would also apply against
the state's permit.
MR. TOSTEVIN specified that it would apply to federal projects
and OCS development, but not to a state [project]. However,
there are state permits that will apply to federal activities as
well as state permits that will apply to OCS development through
this process.
REPRESENTATIVE KERTTULA asked if there can be a district-
enforceable policy through a local zoning ordinance. Can the
state adopt [a district-enforceable policy] against the state
permit, she asked.
MR. TOSTEVIN answered that the local entity would influence the
state project by commenting on the permit. There wouldn't be a
separate enforceable policy.
Number 1650
CHAIR SEATON posed a situation in which there was a development
project that was going to take place on state land, not on
federal land. Therefore, the enforceable policies wouldn't
apply to those projects on state land because it wouldn't be a
federal project or OCS development. Since the project would
only be on state land, the enforceable policies wouldn't apply.
MR. TOSTEVIN directed attention to the first row of the document
entitled, "HB 191/SB 143 Consistency Review Provisions," which
is included in the committee packet. He explained that to the
extent a local ordinance could apply to a state activity, there
are certain statutes that allow local governments to affect
state projects. He agreed that the aforementioned would only be
within the municipal boundaries. Title 29 grants the scope of
the municipality's authority, and he believes municipalities are
allowed extraterritorial authority with limited parameters. Mr.
Tostevin explained that if the state permit can be issued and
the local permits can be obtained, then the activity is
consistent with the coastal program.
MR. TOSTEVIN, in response to Representative Wilson, confirmed
that communities such as Wrangell and Petersburg, which are
municipalities, could go through the regular process with public
hearings. He highlighted that Title 9 municipalities would have
the authority to enact ordinances as well as the ability to
comment on the state permits during the public process. A
provision of HB 191 specifies that it doesn't affect Title 29
powers. He also confirmed that projects two miles outside of
the Wrangell city limits wouldn't apply because there is no
local permitting.
Number 1380
REPRESENTATIVE KERTTULA said, "Another way of putting this would
be that there's no more ... consistency determination for state-
permitted projects, right?"
MR. TOSTEVIN replied no and stated that the consistency is
determined through the issuance of the permits.
REPRESENTATIVE KERTTULA asked, then, how [the district] comments
and how deference is given to the districts. She pointed out
that on most of the permits, the state law will preempt.
Number 1349
MR. TOSTEVIN specified that the local governments can comment on
the permits. The issuance of the permit is the determination of
consistency. He noted that the CZMA allows a state to decide
what uses and activities it wants to regulate and to demonstrate
how its laws regulate coastal uses and protect coastal
resources. One of the methods is a direct method using existing
state laws and regulations to regulate the coastal zone. There
isn't a state consistency review requirement in the federal
program. The only consistency review process in the federal
program is one whereby the state reviews federal activities, OCS
plans, and federally administered permits for consistency with
its state's programs. Mr. Tostevin highlighted that HB 191
proposes a self-implementing concept such that existing laws and
regulations are used to regulate the coastal zone and the
consistency is determined by issuance of the permit, except for
reviewing federal activities or activities on the OCS.
Number 1251
MR. TOSTEVIN said that in the review of federal activities or
activities on the OCS, DNR can adopt local ordinances to apply
to federal activities and the OCS plan. Furthermore, in Section
13, Subsection (f), there are specific intercontinental shelf
policies that have previously been adopted by the ACPC and have
been included in the legislation as enforceable policies. That
provision was one resulting after the administration consulted
with coastal districts. He noted that a copy of HB 191 was
circulated to the coastal districts.
Number 1118
MR. TOSTEVIN continued with the sectional analysis. In response
to Representative Berkowitz's question relating to Section 13,
Subsection (d)(4), Mr. Tostevin related his belief that it's
envisioned that DNR will adopt regulations to implement the
program.
REPRESENTATIVE BERKOWITZ emphasized that the legislature is the
policy-making body.
MR. TOSTEVIN pointed out that certain policies in the
legislation are mandatory, while others allow a municipality to
submit [policies] to DNR for incorporation into the program. He
noted that those ordinances are screened in order to ensure that
they aren't making unreasonable restrictions on uses of state
concern and aren't duplicative; if that's so, DNR can adopt
those policies and enforceable policies for those programs. The
aforementioned enables municipalities to apply those programs to
federal activities or OCS plans where they wouldn't ordinarily
apply.
Number 0949
REPRESENTATIVE GUTTENBERG inquired as to whether DNR is going to
be able to filter the local ordinances or whether there will be
a review or an appeal from the local ordinances.
MR. TOSTEVIN answered that it's up to DNR to determine whether
to adopt the ordinance as an enforceable policy. [The
department] must determine whether the ordinance is reasonably
restrictive. The department must also determine that the
ordinance isn't duplicative of a state standard. The idea is
that it's a unique and important local ordinance that would be
adopted into the program for reviews of federal activities and
OCS [development].
REPRESENTATIVE GUTTENBERG posed a situation in which a
municipality adopts regulations and although DNR doesn't approve
them, the municipality "stands on them." He asked, "Haven't you
put a barrier up in their place?" He remarked that some
municipalities don't want things to happen and asked whether
[this] isn't simply placing an insurmountable barrier.
MR. TOSTEVIN replied that he didn't think so. He pointed out
that first there has to be a municipal ordinance and then DNR
will determine whether it should be part of the program for
those purposes.
REPRESENTATIVE GUTTENBERG surmised, then, that for local control
purposes, it's in place as a local ordinance and thus there
seems to be an inherent conflict.
Number 0787
CHAIR SEATON asked if this [legislation] means that the state
permit can waive and not agree with the local ordinance.
MR. TOSTEVIN explained that [the municipality] is incorporated
into the program for something that the municipality doesn't
have power to do alone. Therefore, the program provides the
municipality the authority to have a policy that impacts the
federal project or the OCS [development] outside of the
municipality's boundaries. The department has the ability to
determine whether that should be a policy. He reiterated that
municipalities do have the authority to implement ordinances,
which are regulated under Title 29. He noted that the
legislature establishes the powers of the municipalities.
Number 0693
REPRESENTATIVE KERTTULA related her belief that it would helpful
for the committee to know what the coastal districts currently
have the right to have authority over, and how the
municipalities utilize their coastal policies in permits, versus
this proposal in which the state permit is the consistency
determination. She inquired as to what is left out with just
local zoning. Representative Kerttula related her understanding
that under HB 191, the state permit is the determination and
there is no longer a policy with regard to enforceable policy
for coastal districts. The DNR decides if it will accept an
already existing local ordinance, and DNR will perform its own
permit review rather than a consistency review.
MR. TOSTEVIN explained that if a municipal ordinance has been
adopted, then DNR consults with the municipality and interprets
and applies that as part of the consistency review. If DNR
does, then that's part of the permit issuance. Therefore, each
resource agency issues its permit, and if there's an additional
municipal policy, DNR will have to interpret that.
CHAIR SEATON directed attention to Subsection (g) [of Section 13
on page 11], which reads: "In selecting enforceable policies
under (d)(3) of this section, the department may, for purposes
of the ACMP, limit the applicability of an enforceable policy to
appropriate activities or to appropriate sectors of the area
described in (d)(2) of this section." He asked if the
aforementioned language meant that there could be a local
ordinance and DNR could decide that the ordinance doesn't apply
to particular activities, if [the municipality] wants to permit
those activities.
MR. TOSTEVIN pointed out that [Section 13], Subsection (g)
refers to the state laws and regulations on page 7-9. That
provision allows DNR to say that a policy applies or doesn't
apply in certain areas.
Number 0480
REPRESENTATIVE BERKOWITZ posed a situation in which there is a
conflict between DNR's permit and a municipal zoning ordinance.
He asked if DNR's permit would trump the municipality's
ordinance.
Number 0445
MR. TOSTEVIN answered that it would depend upon the type of
review. He directed attention to the chart entitled, "HB 191/SB
143 Consistency Review Provisions." He pointed out that the
first row refers to the state's consistency review for
activities in the coastal zone that only require a state permit.
In this situation, the municipalities apply their ordinances to
the activity. However, a federal consistency review, which is
illustrated by row two, is one involving activities in the
coastal zone, federal land, or the OCS for which there are
federally administered permits. Again, if the state permits can
be issued, then the federal permit will be consistent with the
state's program. Mr. Tostevin highlighted that local ordinances
will retain their direct application in the coastal zone.
Furthermore, OCS plans actually incorporate certain local
provisions.
REPRESENTATIVE BERKOWITZ related his understanding that there
would still be a consistency determination but that consistency
would now mean whatever DNR wants and would override the local
[ordinance].
MR. TOSTEVIN disagreed with that interpretation and
characterized it as an oversimplification. The consistency
review process is created as a mechanism to determine whether an
activity is consistent with [the state's] coastal program.
Municipalities have the authority to regulate uses and
activities of the coastal zone absent the coastal zone program.
Number 0285
REPRESENTATIVE BERKOWITZ pointed out that Section 13 on page 11,
lines 13-16, reads: "Sec. 46.39.060. State consistency review.
(a) For activities in the coastal zone that only require state
permits, the issuance of the applicable state permits
implementing the enforceable policies in AS 46.39.010
constitutes consistency with the ACMP." He interpreted the
aforementioned language to mean that once a permit is issued, it
equates to consistency regardless of the local decision
[ordinance].
MR. TOSTEVIN said that's correct; for purposes of consistency,
it would be consistent. However, if, for example, the North
Slope Borough had a zoning ordinance for the oil company, the
oil company would need to obtain [the borough's] ordinance;
otherwise, development wouldn't go through.
REPRESENTATIVE BERKOWITZ remarked, "I don't see it being
consistent; I see it as a removal of local control over the
process." For example, if the North Slope Borough wants
something but the state refuses, then the state trumps [the
borough] because it's inconsistent. Alternatively, if the North
Slope Borough "said no" but DNR issued a permit, then the North
Slope Borough would lose, he surmised.
MR. TOSTEVIN disagreed. He explained that the ACMP doesn't
preempt a municipality's Title 29 powers. If the North Slope
Borough could legally require a permit and the state issued a
permit while the borough didn't, then the project couldn't go
forward because the borough hadn't issued its permit. Mr.
Tostevin directed attention to "Sec. 46.39.072. Construction
with other laws." on page [13].
Number 0066
REPRESENTATIVE KERTTULA asked whether the question is really
about preemption. If the consistency determination is
eliminated, then there will have to be a decision as to whether
the community has Title 29 powers, whether it has any zoning
ordinances in place, and it will be preempted by the state. She
asked if there had been review of that. Representative Kerttula
highlighted that the state preempts on many activities that
[tape ends midspeech].
TAPE 03-15, SIDE A
REPRESENTATIVE KERTTULA reiterated that it's necessary for
everyone to know what's left for the local areas. For those
districts without zoning ordinances, it will just be the state's
permit, she surmised.
The committee took an at-ease from 10:15 a.m. to 10:22 a.m.
Number 0106
MR. TOSTEVIN returned to the sectional analysis [Section 13,
Subsection (d)(4)].
REPRESENTATIVE GUTTENBERG said he was wondering about stranding
or orphaning something. If a local municipality adopts a set of
ordinances that deal with activities and DNR doesn't adopt a
specific one, then the local ordinance is in a situation in
which it might have another permit dealing with these issues.
Although the [borough] needs to issue a permit, the permit
request specifies that there must be compliance with all
previous ordinances. Therefore, a permit is issued that
supercedes the ordinance but the borough can't give a permit for
something else because they have violated that.
MR. TOSTEVIN continued the sectional analysis and highlighted
that Section 13, Subsection (d)(6), is the self-implementing
concept of HB 191. With regard to Sec. 46.39.065, Mr. Tostevin
pointed out that the Act specifically lists the federal
environmental permits that trigger this type of [consistency]
review that's part of the federal program.
Number 0777
REPRESENTATIVE KERTTULA turned to Sec. 46.39.065(e) of HB 191
and asked, if there is a federal permit, whether there would
still be a conclusive determination.
MR. TOSTEVIN explained that Sections 46.39.065(d) and (e) refer
to the consistency review process in coastal areas for a
federally administered permit.
REPRESENTATIVE KERTTULA surmised, then, that if no state permit
is required, then there is a conclusive determination.
MR. TOSTEVIN said that's correct.
REPRESENTATIVE KERTTULA inquired as to why [the state] would
want to do that. Why doesn't [the state] want to maintain the
ability to review federal permits as they come through, rather
than having a conclusive determination, she asked.
MR. TOSTEVIN reiterated that the idea is that it isn't requiring
a state permit and thus the determination has been made that
[the state's] laws and permitting process doesn't apply to the
activity. Therefore, the activity isn't deemed inconsistent
with [the state's] plan.
Number 0895
REPRESENTATIVE KERTTULA asked, "Policywise, isn't that one of
the big beauties of coastal zone [ACMP], is it allows us, as a
state, to have some input into those federal permits?" She
recalled from her time working with the program that one of the
major reasons for the state's becoming involved in ACMP was to
be involved with the federal consistency. She inquired as to
the policy determination. "Is it just ... we're letting them
have a consistency determination," she surmised.
MR. TOSTEVIN agreed that one of the important aspects is the
federal consistency process. All that Sections 46.39.065(d) and
(e) say is that for purposes of [the state's] determining
whether the federal permit is consistent, the [department] will
review the state permitting requirements for that activity
triggered by the federal permit. If there isn't a state permit
for that activity, the [department] will say it's consistent.
Therefore, [the state] is exercising the federal review process.
Basically, this says that if the activity doesn't trigger a
state permit, then it's consistent.
REPRESENTATIVE KERTTULA inquired as to what types of
[activities] that would include.
CHAIR SEATON answered that this is [referring] to an activity
that would require a federal permit for [an activity] on federal
lands.
REPRESENTATIVE KERTTULA suggested that it could also impact
state lands.
CHAIR SEATON pointed out that it wouldn't require a state
permit.
REPRESENTATIVE KERTTULA agreed and commented that it may be de
minimis or it might be huge. She reiterated that federal
consistency was a large reason for this to begin with.
MR. TOSTEVIN explained that the idea is that if a federal permit
is required for a private applicant in a coastal zone and the
state doesn't require a permit for the activity, then the state
is saying that [the activity] is consistent.
Number 1089
REPRESENTATIVE KERTTULA inquired as to U.S. Department of
Defense activities. She recalled:
I thought that there were examples where no state
permits were required, largely because we're
preempted. But where there are activities that take
place on even state lands, where because of coastal
zone we've had a right to comment and to be involved.
And without that, we may not.
MR. TOSTEVIN said that U.S. Department of Defense activities
would probably fall under Sec. 46.39.070, which creates the
consistency review process for federal activities or OCS plans.
He paraphrased from the portion of the sectional analysis
relating to [Sections] 46.39.070(c) and (d), which read as
follows:
Subsections (c) and (d) provide that federal
activities are to be judged by the standards for state
permits in .010(d)(3) and by the local standards
adopted under .010(e) and (f). Subsection (d)
provides that if DNR determines that a proposed
federal activity or OCS plan is inconsistent with an
enforceable policy then the DNR shall, if feasible,
issue a conditional concurrence under 15 C.F.R. 930.4
setting out conditions that would render the federal
activity or OCS plan consistent, thus avoiding formal
mediation. If the proposed federal activity cannot be
rendered consistent, the department must object to the
consistency determination, and the parties then
proceed to dispute resolution under federal law.
REPRESENTATIVE KERTTULA said she believes Mr. Tostevin is right
about the federal activities.
Number 1230
MR. TOSTEVIN continued with the sectional analysis. With regard
to [Sec.] 46.39.080(b), Mr. Tostevin explained that when the
federal, nationwide, or general permit was first proposed, it
would proceed through a federal activity consistency review.
However, if an applicant is merely obtaining a nationwide or
general permit, then that's consistent. In regard to Section
20, Mr. Tostevin explained that general concurrence
determinations are activities that have standard stipulations
tied to them.
REPRESENTATIVE KERTTULA asked if anything was being added to the
current ABC list of activities that need not be reviewed.
MR. TOSTEVIN replied no.
Number 1541
CHAIR SEATON pointed out that HB 191 has two zero fiscal notes
and one with $73,000 in 2006. He surmised that there is
basically no fiscal impact because it was gained in EO 106,
which had to take place prior to [HB 191].
MR. TOSTEVIN responded that is correct.
CHAIR SEATON referred to a document from the Yukon-Kuskokwim
Delta [Cenaliulriit CRSA, which is included in the committee
packet]. He informed the committee that [Cenaliulriit CRSA] has
some problems with subsistence aspects and relates that the
Association of Village Council presidents, which serves 56
villages, opposes HB 191. He turned to public testimony in
order to give Mr. Tostevin time to review the document so that
he could comment on it.
Number 1639
TADD OWENS, Executive Director, Resource Development Council
(RDC), informed the committee that RDC has worked in conjunction
with the Alaska Oil and Gas Association (AOGA) and several other
development associations in order to evaluate the existing ACMP
program and to consider improvements or user-friendly
alternatives. Mr. Owens announced RDC's support of HB 191. Mr.
Owens offered to provide more thorough input at a later date.
CHAIR SEATON requested some examples in which the ACMP has held
up development for the RDC's associates.
MR. OWENS recommended that Judy Brady, AOGA, address this as
well. However, he informed the committee that the ACMP process
for oil and gas projects on the North Slope adds at least a year
to the permitting process. Therefore, the permitting process
needs to be refined to be more user-friendly, predictable, and
time-sensitive. In many instances, the ACMP has become the
poster child for a process that has become very inefficient and
isn't time sensitive and thus adds a great deal of delay, he
added.
CHAIR SEATON surmised that Mr. Owens believes that would be the
case even if the local management [ordinances] are selected as
enforceable standards.
MR. OWENS answered with his belief that the administration is
attempting, with HB 191, to eliminate many of the cumbersome
aspects of the process while protecting the rights of local
communities to have a voice regarding development within their
boundaries.
Number 1850
JUDY BRADY, Alaska Oil and Gas Association, noted that she has
three pages' worth of responses to the questions asked and would
submit those to the committee. Ms. Brady informed the committee
that AOGA has worked with DGC and various governors and
administrations trying to fix the ACMP for a number of years.
This legislation moves toward the original intention of the
ACMP. She pointed out that the ACMP was never intended to be a
permitting system, but rather that the state statutes and
regulations would be used for consistency. Furthermore, it was
always intended that local governments would have a voice,
although they wouldn't have the final say. The state has the
final say on federal consistency projects, and that wouldn't
change, she pointed out. Ms. Brady said that AOGA is still
diagramming this process in order to determine how it works in
real life.
MS. BRADY noted that AOGA has never been able to diagram the
ACMP process as it currently works. With regard to the question
of what projects haven't gone forward, Ms. Brady said that
several projects have been delayed fairly consistently and a
couple of companies have said that they need to be in the ground
faster, know the rules faster, know how long it takes to
[obtain] a permit, know whether the project is in the coastal
zone, and know what will be required of them. Those companies
have turned their backs on Alaska. Ms. Brady related that the
companies don't mind the standards, but they do mind the
permitting gridlock related to ACMP. She suggested that later
AOGA would have specific comments on language. This legislation
is back to basics and what the permitting process was originally
supposed to be, she concluded.
Number 2033
NOAH NAYLOR, Planning Director, Northwest Arctic Borough,
paraphrased his written testimony as follows:
The Northwest Arctic Borough and the North Slope
Borough can serve as models where our district plans,
which strive to protect our subsistence resources,
upon which we still depend on today, can allow for
major economic development and for the protection of
our resources. Our district plans, coupled with our
Title 29 planning authority, allowed the leverage
needed to promote and mitigate for responsible
economic development.
By adopting a statewide "one size fits all" set of
enforceable policies, you will take away what we feel
is the heart of our district plan, a set of policies
that address the unique circumstances in each of our
districts. Simply adding a paragraph of each of our
plans cannot and should not be viewed as an
implementation policy that will address our local
needs. By adopting these policies, you will take away
a very strong tool provided to us in our district plan
- the ability for local due deference, expertise,
experience, and control.
This bill hurts us in several separate ways: it takes
away our unique enforceable policies; it removes the
vital role for local involvement, expertise, and
government; and it will result in the loss of federal,
state, and borough-invested resources, time and
expertise in developing and implementing the borough
coastal management plan.
MR. NAYLOR concluded by requesting more time to review HB 191.
Number 2148
WALTER SAMPSON, President, Northwest Arctic Borough Assembly,
informed the committee that the Northwest Arctic Borough is a
home rule borough. He related his belief that ACMP is being
attacked by interest groups. If there is going to be a change,
there should be a process for public testimony. Having one ACMP
won't fit all the regions. Limiting liability and mitigating
responsibility to the needs of the region is important. If the
public process has been used to develop these coastal management
plans, then there's no reason why the state can't go through a
process to review and change the ACMP. He remarked that the
questions raised today need to be addressed.
Number 2298
MR. JEFFRESS said that he has reviewed the [testimony from
Cenaliulriit CRSA, which is included in the committee packet].
He pointed out that this is the review process. With the
administration taking over at the beginning of December, this is
the most expeditious manner in which to move this process
forward.
CHAIR SEATON announced that the committee will accept further
comments in writing.
[HB 191 was held over.]
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Fisheries meeting was adjourned at 11:00
a.m.
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