Legislature(2003 - 2004)
04/16/2003 01:08 PM House RES
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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 RESOURCES STANDING COMMITTEE
April 16, 2003
1:08 p.m.
MEMBERS PRESENT
Representative Hugh Fate, Chair
Representative Beverly Masek, Vice Chair
Representative Carl Gatto
Representative Cheryll Heinze
Representative Bob Lynn
Representative David Guttenberg
Representative Beth Kerttula
MEMBERS ABSENT
Representative Carl Morgan
Representative Kelly Wolf
OTHER LEGISLATORS PRESENT
Representative Paul Seaton
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
CS FOR SENATE JOINT RESOLUTION NO. 12(RES)
Supporting the halibut by-catch utilization project of the
Alaska Food Coalition.
- SCHEDULED BUT NOT HEARD
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
03/26/03 (H) Moved Out of Committee
MINUTE(FSH)
03/26/03 0638 (H) FSH RPT 2DP 2DNP 1NR 2AM
03/26/03 0638 (H) DP: HEINZE, WILSON; DNP:
GUTTENBERG, BERKOWITZ;
03/26/03 0638 (H) NR: SAMUELS; AM: OGG, SEATON
03/26/03 0639 (H) FN1: ZERO(DFG)
03/26/03 0639 (H) FN2: ZERO(DEC)
03/26/03 0639 (H) FN3: (DNR)
03/26/03 0639 (H) REFERRED TO RESOURCES
03/26/03 (H) RES AT 1:00 PM CAPITOL 124
03/26/03 (H) -- Meeting Canceled --
03/28/03 (H) RES AT 1:00 PM CAPITOL 124
03/28/03 (H) <Bill Hearing Postponed>
04/11/03 (H) RES AT 1:00 PM CAPITOL 124
04/11/03 (H) <Bill Hearing Postponed>
04/16/03 (H) RES AT 1:00 PM CAPITOL 124
WITNESS REGISTER
MARTY RUTHERFORD, Consultant
to the Administration
and to the Department of Natural Resources (DNR)
Anchorage, Alaska
POSITION STATEMENT: Testified to changes made in the proposed
committee substitute (CS) for HB 191 dated 4/12/2003.
BRECK TOSTEVIN, Assistant Attorney General
Environmental Section
Civil Division (Anchorage)
Department of Law
Anchorage, Alaska
POSITION STATEMENT: Provided an overview of the sectional
analysis of the proposed CS for HB 191.
PATRICK GALVIN, Petroleum Land Manager
Division of Oil and Gas
Department of Natural Resources
Anchorage, Alaska
POSITION STATEMENT: Provided testimony and answered questions
relating to the proposed CS for HB 191.
CHUCK DEGNAN, Director
Bering Straits Coastal Management Program
Unalakleet, Alaska
POSITION STATEMENT: Expressed concerns relating to the proposed
CS for HB 191.
KATHY WASSERMAN, Mayor and Administrator
City of Pelican
Pelican, Alaska
POSITION STATEMENT: Testified on the proposed CS for HB 191.
JOHN OSCAR, Program Director
Ceñaliulriit Coastal Resource Service Area Board (CRSA)
Mekoryuk, Alaska
POSITION STATEMENT: Expressed concerns relating to the proposed
CS for HB 191.
PAT NORMAN, First Chief
Port Graham Village Council
Port Graham, Alaska
POSITION STATEMENT: Expressed concerns relating to the proposed
CS for HB 191.
FRANK KELTY, Member
Aleutians West Coastal Resource Service Area (CRSA) Board
Unalaska, Alaska
POSITION STATEMENT: Expressed concerns relating to the proposed
CS for HB 191.
BOB SHAVELSON, Executive Director
Cook Inlet Keeper
Homer, Alaska
POSITION STATEMENT: Expressed concerns relating to the proposed
CS for HB 191; said the districts will have a severely
constrained role in local coastal decisions under this bill.
MARV SMITH, Community Development Coordinator
Lake and Peninsula Borough
King Salmon, Alaska
POSITION STATEMENT: Testified about concerns relating to the
proposed CS for HB 191.
LISA VON BARGEN
City of Valdez
Valdez, Alaska
POSITION STATEMENT: Provided testimony on the proposed CS for
HB 191.
PAT CARLSON, Manager
Kodiak Island Borough
Kodiak, Alaska
POSITION STATEMENT: Provided testimony on the proposed CS for
HB 191.
KAROL KOLEHMAINEN, Program Director
Aleutians West Coastal Resource Service Area Board
Palmer, Alaska
POSITION STATEMENT: Testified on the proposed CS for HB 191.
KEN DONAJKOWSKI, Manager
Health Safety Environment (HSE)
Conoco Phillips Alaska, Inc.
Anchorage, Alaska
POSITION STATEMENT: Testified on behalf of Alaska Oil and Gas
Association (AOGA) regarding the proposed CS for HB 191.
SARAH GILBERTSON, Policy and Program Coordinator
Alaska Municipal League (AML)
Juneau, Alaska
POSITION STATEMENT: Testified on HB 191; said AML didn't have
an official position on the proposed CS, but offered comments
on it.
DOUGLAS MERTZ
Prince William Sound Regional Citizen's Advisory Council
(PWSRCAC)
Juneau, Alaska
POSITION STATEMENT: Testified on the proposed CS for HB 191;
said PWSRCAC had increasing concerns about the disconnect
between the apparent intention of the drafters and the language
in the bill.
TERI CAMERY, Planner
City and Borough of Juneau (CBJ)
Juneau, Alaska
POSITION STATEMENT: Expressed concerns relating to the proposed
CS for HB 191.
ACTION NARRATIVE
TAPE 03-31, SIDE A
Number 0001
CHAIR HUGH FATE called the House Resources Standing Committee
meeting to order at 1:08 p.m. Representatives Fate, Masek,
Gatto, Heinze, Lynn, Guttenberg, and Kerttula were present at
the call to order. Also in attendance was Representative
Seaton.
HB 191-COASTAL MANAGEMENT PROGRAMS
CHAIR FATE 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." [The bill was sponsored by
House Rules Standing Committee by request of the governor.]
Number 0132
REPRESENTATIVE MASEK moved to adopt the proposed committee
substitute (CS) labeled 03-0069 bil2.doc, 4/12/2003, 5pm, as the
work draft, and asked for unanimous consent. There being no
objection, the proposed CS dated 4/12/2003 was before the
committee.
Number 0185
MARTY RUTHERFORD, Consultant to the Administration and the
Department of Natural Resources (DNR), testified. She
characterized the Alaska Coastal Management Program (ACMP) as an
older program that has not appropriately responded to Alaska's
maturing statutory and regulatory regime. She suggested that
the existing program is often redundant, using local enforceable
policies that are a reiteration of the regulatory agencies'
permit standards. She offered her opinion that the programs'
consistency review process is unpredictable, is overly broad in
scope, takes too much time, and delays the issuance of permits
and the startup of projects.
MS. RUTHERFORD suggested that the statewide standards and local
enforceable policies are vague and subject to multiple
interpretations. However, she said while the program has
problems, the sweeping changes that were suggested in the
original HB 191 eliminated some of the primary reasons for
Alaska's embracing coastal management in the first place,
including state and local control over projects requiring a
federal authorization, and state and local influence on direct
federal activity. During the discussions of the original
HB 191, she explained, this administration took to heart some of
the comments received from the districts, the coastal resource
districts, and the citizens; as a result, this proposed CS
returns to the basic structure of the existing coastal
management program.
Number 0523
MS. RUTHERFORD explained that [the proposed CS dated 4/12/2003]
retains the four existing coastal resource service areas, which
are located in the unorganized borough, and that all existing
coastal districts continue, retaining the same authorities and
responsibilities as under the current program; it retains local
enforceable policies and all the statewide standards of the
program, including the habitat standard and the subsistence
standard; and it ensures that all activities requiring a federal
or state permit will have a consistency review. She said
district enforceable policies remain applicable to all projects
that are subject to a consistency review, not just the outer
continental shelf (OCS) projects and federal activities, as
envisioned in HB 191. She suggested that this proposed CS
ensures that the districts will retain their "seat at the table"
as project decisions are made.
Number 0596
MS. RUTHERFORD explained that this proposed CS makes significant
changes to the program and attempts to retain important elements
while addressing the [aforementioned] problems. For instance,
it eliminates the [Alaska Coastal Policy Council (ACPC)] and
transfers its duties to DNR; places a sunset provision on the
current statewide standards and coastal district plans and
mandates that their replacement standards be clear, concise, not
susceptible to subjective interpretations, and not duplicative
of otherwise existing requirements; clarifies that local
enforceable policies may not address a matter that is regulated
or authorized by state or federal law unless the policy relates
specifically to a matter of local concern; and provides a
definition for what constitutes a matter of local concern.
MS. RUTHERFORD further explained that it provides important
clarifications on the consistency review process in order to
ensure more predictable timelines and standards, which includes
the scope of a project that is subject to review and when a
project can proceed in phases; encourages the use of general
permits; clarifies that the Department of Environmental
Conservation's (DEC's) permits and authorizations will
constitute the consistency determination for air, land, and
water quality; and insulates the coastal management consistency
review from delays associated with these permits and
authorizations.
Number 0741
BRECK TOSTEVIN, Assistant Attorney General, Environmental
Section, Civil Division (Anchorage), Department of Law, told
members that the proposed CS is premised upon statutory changes
in Executive Order (EO) 106, introduced by the governor on
February 12, 2003; it transfers responsibility for ACMP from the
Division of Governmental Coordination (DGC) to DNR.
Mr. Tostevin said the EO did not make substantive changes to the
law, but repealed existing statutes found in AS 44.19 and
readopted them in a "new title 46.39."
Number 0835
MR. TOSTEVIN said the proposed CS clarifies the scope,
applicability, and requirements of the existing coastal
management program in AS 46.40; retains coastal resource
districts and the current structure of how they operate under
ACMP; retains the existing Coastal Resource Service Areas
(CRSAs) in the unorganized borough, but eliminates the creation
of new CRSAs; eliminates the Alaska Coastal Policy Council and
transfers its authority to the development of statewide
standards of the ACMP and the approval of district coastal
management plans to DNR; requires DNR to adopt regulations
within one year of enactment, establishing clear and enforceable
statewide standards of ACMP as well as criteria for the approval
of new district coastal management plans; and requires coastal
resource districts to submit new coastal management plans to DNR
for approval.
MR. TOSTEVIN explained that the plans must have enforceable
policies that are clear and concise, that provide greater
uniformity throughout the state, and that don't duplicate state
and federal requirements. The districts are required to submit
these new plans to DNR for approval within six months for first-
class [cities] and boroughs, and within a year for other
districts; this date is from the effective date of the new
regulations. He said the proposed CS streamlines the ACMP by
relying on DEC's air, land, and water quality requirements as
the enforceable policies of the ACMP for those purposes, and by
relying on DEC's determination for implementation of those
requirements in order to determine consistency for those parts
of a development project.
Number 0991
MR. TOSTEVIN paraphrased from Sections 1-8 of the sectional
analysis, which read [original punctuation provided]:
Section 1 contains legislative findings on the need
for reform of the ACMP.
Sections 2 [and 4], 5-6 make conforming amendments to
existing statutes reflecting the elimination of the
Alaska Coastal Policy Council and the transfer of the
[ACPC's] functions to the Department of Natural
Resources.
Sections 7 and 8 transfer from the [ACPC] to DNR the
authority to develop statewide standards and the
criteria for adoption of district coastal management
plans.
MR. TOSTEVIN explained that Section 3 reflects a change in
terminology when referring to district coastal management
programs. The proposed CS refers to new district plans to
distinguish them from the existing district programs, and also
to distinguish them from the existing statewide ACMP program; so
that changes throughout.
MR. TOSTEVIN continued paraphrasing from Sections 9-12 of the
sectional analysis, which read [original punctuation provided]:
Section 9 directs coastal resource districts to
develop and adopt coastal management plans and set
forth the required contents of the plans. AS
46.40.030(b) states that enforceable policies of those
plans must meet the requirements of AS 46.40.070 and
may not duplicate, restate, or incorporate by
reference statutes or administrative regulations
adopted by state or federal agencies. The term
"enforceable policy" is defined in section 43 of the
bill.
Section 10 directs DNR to establish statewide
standards for the ACMP and district coastal management
plan criteria.
Section 11 establishes the Department of Environmental
Conservation's air, land and water quality
requirements as the exclusive policies of the ACMP of
those purposes. This provision provides that the
issuance of permits, certifications, approvals and
authorizations by DEC constitute a determination of
consistency with the ACMP for those purposes and for
those components of a proposed development project
subject to those permits and other authorizations.
This language ensures that the ACMP consistency review
process does not duplicate DEC's permitting process.
This provision conforms with the provisions of the
existing program at 6 AAC 80.140 and the federal
Coastal Zone Management Act's requirement that these
environmental standards be included in the state's
coastal program.
Section 12 repeals and readopts AS 46.40.050
concerning submission of district plans by coastal
resource districts. The section removes obsolete
language from the initial creation of the program in
1977 and adds a new requirement that a coastal
resource district must review and resubmit its plan
for approval every five years. This is to ensure that
the district plans are regularly updated.
Number 1226
MR. TOSTEVIN continued paraphrasing from Section 13 of the
sectional analysis, which read [original punctuation provided]:
Section 13 amends the district plan review and
approval provision at AS 46.40.060. It provides that
the department may approve a district coastal
management plan provided it meets the requirements of
AS 46.40, the statewide standards adopted by DNR, and
the district plan criteria adopted by the department.
A district plan may not arbitrarily, unreasonably, or
unduly restrict or exclude uses of state concern.
Uses of state concern are defined in AS 46.40.210(8)
at section 42 of the bill.
Number 1276
MR. TOSTEVIN continued paraphrasing from Sections 14-19 of the
sectional analysis, which read [original punctuation provided]:
Section 14 establishes specific requirements for
department review and approval of district coastal
management plans in AS 46.40.070. The department may
approve a district plan under AS 46.40.060, if it
meets the requirements of AS 46.40, AS 46.40.060 and
the enforceable policies of the plan meet the
requirements of .070(a)(2). 070(a)(2) requires that
the enforceable policies be clear and concise, are not
susceptible to inconsistent application, and use
precise, prescriptive, and enforceable language. In
addition, the enforceable policy may not address a
matter regulated or authorized by state or federal law
unless the enforceable policies relate specifically to
a matter of local concern. "Matter of local concern"
is specifically defined in the bill.
Section 15 makes conforming changes to AS 46.40.090
concerning how local district plans are implemented in
the unorganized borough.
Section 16 amends existing AS 46.40.094 that describes
how a project may be reviewed for consistency with the
ACMP in "phases." This amendment would broaden the
phasing statute to allow projects other than
traditional oil and gas leasing projects to be
reviewed in phases. The phasing test is changed from
whether future information is "obtained in the course
of a phase" to whether the information "was not
available to the project applicant at the time of the
previous phase." This change makes the language
consistent with the federal coastal management
regulations allowing for phasing of federal activities
subject to a consistency review in 15 C.F.R.
930.36(d).
Sections 17-22 amend the existing statute providing
for consistency reviews of development projects in the
coastal zone.
Section 17 provides that DNR is to establish by
regulation a consistency review process conforming to
AS 46.40.096.
Section 18 clarifies that consistency reviews are
triggered by state resource agency authorizations.
Section 19 provides that DNR's consistency review
regulations must provide for public notice, which is a
requirement of the federal coastal zone management
act.
Number 1452
MR. TOSTEVIN continued paraphrasing from Sections 20-21 of the
sectional analysis, which read [original punctuation provided]:
Section 20 provides that "subsequent reviews" also
known as "elevations" during the consistency review
project are decided by DNR and that they are to be
completed within 45 days after the initial request for
review.
Section 21 amends AS 46.40.096(g) to exclude certain
activities and permits from the consistency review
process. Consistent with federal law, an activity
that is authorized under a general or nationwide
permits previously determined to be consistent with
the ACMP is not required to be reviewed a second time.
As provided in section 11, an activity that is
authorized by DEC under its air, land and water
quality requirements are exempted under AS
46.40.040(b). Activities excluded from a consistency
review under the existing provisions of the Forest
Practices Act in AS 41.17 are excluded from a
consistency review under AS 46.40.096.
Number 1500
MR. TOSTEVIN continued paraphrasing from Section 22 of the
sectional analysis, which read [original punctuation provided]:
Section 22 adds three new sections to AS 46.40.096 to
clarify what permits or activities trigger a
consistency review, the scope of the review once
triggered and the geographic scope of the activities
subject to a review.
New subsection (i) clarifies that, except as provided
in the Forest Practices Act, the exclusions in (g) of
.096, and for federal consistency reviews and
certifications subject to federal law, a consistency
review is triggered by an activity that is subject to
a state resource agency permit, lease, authorization,
approval or certification.
New subsection (j) provides that except as provided in
the phasing statute (AS 46.40.096) and the exceptions
above, the scope of a consistency review is limited to
activities subject to the permit or authorization and
a coastal resource district policy approved by the
department under the State Coastal Management Act.
New subsection (k) defines the geographic area where
an activity triggers a consistency review and the
geographic scope of the review once triggered. The
consistency review process is to apply to activities
within the coastal zone of the state (defined in AS
46.40.210), activities on the federal outer
continental shelf or on federal lands that are the
within the geographical boundaries of the state's
coastal zone.
New subsection (l) directs DNR to establish by
regulation categories and descriptions of uses and
activities that are determined to be consistent with
the ACMP or that would be made consistent with the
inclusion of standard alternative measures. The
existing list of such activities is known as the "A" &
"B" list. The new legislation directs that these
categories and descriptions of uses and activities be
reviewed by DNR and made as broad as possible so as to
minimize the number of projects that must undergo an
individualized consistency review.
Number 1660
MR. TOSTEVIN continued paraphrasing from Sections 23-43 of the
sectional analysis, which read [original punctuation provided]:
Section 23 includes cross-references to existing
requirements in the enforcement section of the State
Coastal Zone Act.
Sections 24-28 are conforming amendments transferring
authority from the [ACPC] to DNR.
Sections 29-37 are amendments to the statutory
provisions governing the creation and operation of
coastal resource service areas (CRSAs) in the
unorganized borough. These sections are amended to
retain existing CRSAs but to preclude the creation of
new CRSAs.
Section 38 is a new savings clause clarifying that
nothing in AS 46.40 diminishes state jurisdiction or
affects state requirements as they apply to the
federal government under a federal authorization or
federal waiver of sovereign immunity. The savings
clause also makes clear that the coastal zone act does
not diminish the zoning or planning authority of
municipalities under AS 29.
Section 39 is a conforming amendment concerning the
use of the term district coastal management plan.
Section 40 amends the existing definition of
consistency review to track the scope and
applicability clarifications in the other sections of
AS 46.40.
Section 41 defines department as the department of
natural resources.
Section 42 amends the existing definition of "uses of
state concern."
Section 43 adds new definitions of the terms "coastal
use or resource," "coastal zone," "district management
plan," and "enforceable policy."
Number 1782
MR. TOSTEVIN continued paraphrasing from Sections 44-46 of the
sectional analysis, which read [original punctuation provided]:
Section 44 repeals statutory references to the CPC and
obsolete provisions of AS 46.40.
Section 45 annuls the existing statewide standards and
district program guidelines in 6 AAC 80 and 6 AAC 85.
This annulment takes effect on July 1, 2005 (see
section 49).
Section 46 is a transition provision. First it
directs DNR to adopt regulations implementing this Act
no later than July 1, 2004.
Second, until the statewide standards and district
program guidelines are annulled under section 45 or
DNR adopts new regulations, DNR can implement and
enforce the statewide standards and guidelines to the
extent not inconsistent with this Act.
Third, district coastal management programs approved
by the [ACPC] stay in effect until July 1, 2006,
unless DNR disapproves or modifies all or part of the
program before July 1, 2006.
Fourth, consistency reviews pending on the day before
the effective date of this Act may continue and be
completed under the prior rules, at the applicants
option exercised no later than 60 days after the
effective date of the act.
Number 1881
MR. TOSTEVIN continued paraphrasing from Sections 47-50 of the
sectional analysis, which read [original punctuation provided]:
Section 47 is a transition provision directing the
submission of new district plans by coastal resource
districts for initial implementation of this Act. The
Act staggers the submission of the new plans based on
whether the coastal resource district is a home-rule
municipality or first-class city. Those coastal
resources districts must submit new plans within six
months of the effective date of regulations adopted by
DNR. Other coastal resource districts must submit new
plans within one-year of the effective date of the
regulations. Subsection (c) provides that the 90-day
review time in AS 46.40.070 does not apply to the
submissions under (a) and (b) of the transition
provision.
Section 48 contains revisor's instructions making
changes in article headings and Alaska Administrative
Code changes reflecting the transfer of the coastal
management program from the [ACPC] to DNR. Subsection
(c) provides that if DNR's regulations are adopted
before old [ACPC] regulations are annulled, the old
[ACPC] regulations at 6 AAC 80 and 6 AAC 85 will be
removed by the regulations attorney as obsolete.
Section 49 is the delayed effect date of section 45's
annulment of 6 AAC 80 and 6 AAC 85 on July 1, 2005.
Section 50 provides that with the exception of section
49, the Act takes effect immediately under AS
01.10.070(c).
MS. RUTHERFORD noted that the bill packet contained a
provisional timeline for implementation in the new program and
how it interrelates with the current program.
Number 2116
MS. RUTHERFORD, in response to a question from Representative
Seaton with regard to Section 14 of the sectional analysis and
enforceable policies, referred to page 10 of the bill,
subsection (a), paragraph (2), subparagraph (D), sub-
subparagraphs (i)-(iii), and mentioned a "three-part test." She
said an example of an issue that could meet this test would be
if a particular district had eelgrass beds that it wanted to
protect and felt that the statewide habitat standard did not
"reach to that." She explained that if it was of critical
concern, then [the district] could develop an enforceable policy
- as long it was clear, concise, and easily understood and
implemented - that would preclude activities in that area such
as having a log-transfer facility.
Number 2166
MS. RUTHERFORD, in further response, offered her belief that it
is intended to mean the crafting of the language will be as
uniform as possible, so that not as much is placed on the
applicants; the implementing agencies will have to interpret the
enforceable policies to try to determine what various approaches
to crafting language is being used. She remarked, "So, that
doesn't mean that they have to be cookie-cutter versions of
issues of local concern; it means that they have to be crafted
similarly." She said the goal is to try to move the local
enforceable policies in the statewide standard to be similar to
how statutes are crafted, so that they are more readily and
easily applied.
MS. RUTHERFORD, in further response with regard to a set of
standards or guidelines for enforceable policies, said DNR does
not have those standards yet, but there is no intent to have the
districts go through a (indisc.) type of analysis. She
explained that it would basically be a process wherein the
department helps, guides, and works with local districts to
determine what might be an "appropriate set." Ms. Rutherford
said it is the hope of the [department] to begin to develop some
enforceable policies and model plan elements that could be
embraced and amended slightly for local issues. She explained
that yes, that's part of the goal, but nothing is created at
this time.
Number 2301
REPRESENTATIVE HEINZE, referring to a previous House Special
Committee on Fisheries meeting on HB 191, talked about concern
expressed by municipalities and boroughs that [the bill] takes a
lot of authority away from them. She asked for clarification
about how this new [legislation] addresses that.
MS. RUTHERFORD explained that it basically returns to the
existing program structure whereby the coastal districts, the
coastal resource service areas, and the incorporated districts
will continue to exist, will continue their existing
authorities, will continue to have the right to promulgate
enforceable policies, and will retain their seats at the table
in project review and decision making.
REPRESENTATIVE HEINZE offered her understanding that
[municipalities and boroughs] would not be [included] in any
area at all.
MS. RUTHERFORD said no, they're not.
Number 2349
REPRESENTATIVE KERTTULA expressed concern about interaction
between DEC's statutes and regulations and how the new coastal
management program will work. She said it appears DEC has been
separated out so that its statutes are going to be
determinative. She asked what interaction is allowed to
districts according to those standards, and also whether
[districts] will be allowed to [maintain] their own enforceable
standards if "they're in any way touching something that's a DEC
permit." She asked for an explanation of how this is going to
work.
Number 2407
PATRICK GALVIN, Petroleum Land Manager, Division of Oil and Gas,
Department of Natural Resources, answered that the way coastal
management and DEC permitting interact currently is that DEC's
statutes, regulations, policies, and procedures are included as
enforceable components of the coastal management program. As it
is currently implemented, when a consistency determination is
being done, it cannot be completed and it cannot become
consistent until DEC has decided that the project meets all of
its permitting requirements.
MR. GALVIN explained that when a project requires multiple
permits from various agencies, coastal management precludes
those agencies from issuing any permits for the project until
the consistency determination is completed. He said the
relationship with DEC means that the consistency determinations
cannot be completed until DEC has completed its permitting
decision; in effect, no permits can be issued for a project
until DEC has found that it meets all of the permit
requirements. He explained that oftentimes, on large projects,
a DEC permit such as the air permit - which requires a very
complicated permitting process - takes a great deal more time
than the remainder of the project review; however, none of the
"prints" for the project, which may be completely unassociated
with air permitting or with whatever the source of the air
discharge is, can be permitted and begin to work until that air
permit issue has been resolved and completed.
MR. GALVIN explained that the proposed CS suggests that while
coastal management currently doesn't question DEC when it's
issuing its permit, that decision can be made on its own, and
the consistency determination should be allowed to proceed based
upon the issues absent the DEC component. He said that doesn't
mean that a district could not look at aspects of the discharge
that are not within DEC's standards or guidelines, such as the
sitings of the source. Therefore, he said, the local district
would be able to adopt enforceable policies, submit them for
approval by DNR, and include them in the program policies
dealing with the location of the sources. However, when it
comes to the number of parts per million that a discharge should
be or what the air permit standards should be, the districts
would be precluded from adding requirements beyond what DEC has
established as the statewide requirements in those areas.
Number 2591
REPRESENTATIVE KERTTULA asked how many districts currently have
policies that add something to a DEC standard that could be
precluded.
MR. GALVIN answered that he was only aware of two, which have to
do with secondary containment requirements for fuel tanks.
Those are the Kenai Peninsula Borough and the Aleutians West
CRSA, which require additional capacity; he said DEC requires
105 percent and those two districts want 110 percent capacity of
the tank. Mr. Galvin explained the North Slope Borough has
policies dealing with spill contingency planning that have very
explicit requirements stated in the policy, but they conclude
with the statement that nothing in these policies is intended to
require anything beyond state or federal existing requirements.
He indicated at the time this plan was created, there was a
recognition that the standards established in state and federal
law in these areas are the standards that will be applied even
at the district level.
Number 2666
REPRESENTATIVE SEATON asked if DNR can issue permits even if DEC
has completed its permitting and therefore a project may be
"thinking that they're going ahead" and may be doing things that
would then be precluded by the DEC water discharge permit.
MR. GALVIN said none of the activities could be done that
require the DEC permit. He elaborated:
Think of any large project - ... the creation of the
Fort Knox Mine. ... If that project were in the
coastal zone, it was permitted - their issues with
regard to the creation of the tailings dam and all the
construction that had to do with the tailings part,
where they had gotten the DEC permits. All the water
permits had been in place, but they didn't yet [have]
the air permits associated with the processing
facility, and they hadn't reached the final design and
identified the exact generators and the exact source
containment in order to get the final buyoff on that.
But they ... knew that they were going to get it. ...
If that project had been in the coastal zone, they
couldn't have begun to work on the containments
because they couldn't have gotten those permits until
they'd gotten that air permit in place, and the
consistency determination to allow for those other
permits to be issued. But because it was in the
Interior, they could get the work going and they saved
18 months in the process by getting the project
started there and then getting the air permit at the
time that the air permit issue became relevant and
they needed to get that in place.
Number 2757
REPRESENTATIVE GATTO asked about the remark, "They knew they
were going to get it," with regard to the air quality permit.
MR. GALVIN responded that they knew that they would be able to
find a way, knew what the standard was, and were working with
the agency to determine, if they had one particular type of
equipment, what the operational requirements would be to do
that, and if they had another type of equipment, what the
operational requirements would be. He said they knew they had
three or four options available and were working with the agency
to determine that; it wasn't a question of whether they were
going to get the authorization or not. Mr. Galvin explained
that they knew they would find the "mix" that would get them the
authorization; it was just a matter of which one would be the
most cost-effective and most efficient at doing the work that
needed to be done. He said that's the discretion that goes on
in this permit process.
Number 2820
REPRESENTATIVE GATTO remarked:
You currently, probably, hold all kinds of agreements
with the federal government, ... agreements on
satisfying federal regulations as well as state
regulations. But these are agreements that were done
by the previous organization. I'm curious how the
federal government will look at those agreements when
the organization they made the agreements with doesn't
exist anymore, or will they say, ... "I understand
that those agreements now transfer over to a new
organization"?
Number 2851
MR. GALVIN replied, "That's actually a question for the
executive orders that became effective yesterday."
MR. TOSTEVIN explained that the executive orders have a savings
clause in them that says rights and obligations of the DGC are
transferred to DNR; as far as approval from the federal office
of coastal management that oversees the coastal program, it's
indicated that the transfer of authority from one agency to
another is a routine plan change and won't cause a problem with
regard to approval.
Number 2886
REPRESENTATIVE GUTTENBERG referred to page 10 and noted that the
bill contained terms such as "may" and "if". He asked about the
parameters.
MS. RUTHERFORD said there is no question that now the agency
will have the discretion of accepting a district plan and
enforceable policies associated with it; inherent in that
discretion is a determination as to whether or not the term is
applied here, and that intent and the finding have been met in
the effort to craft policies that are clear and concise. She
indicated that if they're going to address a matter that is
regulated by or operated under state or federal law, they should
have met the [three-part] test. Ms. Rutherford explained that
the intent is not to preclude, but to ensure that the standards
which had been described are met. She said it would be an
iterative process between the agency and the district.
TAPE 03-31, SIDE B
Number 2982
CHUCK DEGNAN, Director, Bering Straits Coastal Management
Program, expressed opposition to the requirement to have new
plans starting from ground zero. He told members:
The existing plan that we have is applicable because
we are living in a rural area and there is very little
change in the economic base of the region. ... It
would [pose an] additional financial burden of time
and effort to completely change the plan. There is a
process that would have minor amendments, and that
would be [a] more acceptable way to make changes to
coastal management plans.
... The other issue that's really of concern to us is
the practice of recognizing local knowledge. There
needs to be a way to make sure that local people have
a say in designing projects that would meet the needs
of local people. And when you try to make everything
the same on a statewide basis, our state is so big and
so different from each other that it puts an
additional burden on rural communities.
Number 2898
KATHY WASSERMAN, Mayor and Administrator, City of Pelican,
testified as follows:
We appreciate the changes made to HB 191 in response
to the concerns of local coastal districts. Pelican
has supported its own district since 1984. Our plan
with enforceable policies allows us to address issues
of local concern that are unique to this area, and we
feel it's very important that that continue.
Our concerns with the CS as presented are Section 12,
which is a submission of district plans. This
provides that a district must review and resubmit its
coastal management plans for reapproval every five
years, and we feel that this places a large burden on
our district, especially as small as we are. We
request that this update not occur more often than
every ten years because it would involve staffing,
public process, and things which would boost our ...
expenditures quite high.
Section 47 is submission of plans by coastal resource
districts that are a first-class city. Pelican is a
first-class city, a very small one; we incur the costs
that go with first-class cities. This will give us
six months to draft a new plan. This seems like a
very short time period for us to get that sort of work
done, even though maybe larger first-class cities
could do it because they have additional staff. Our
district is short-staffed, and we will be looking to
[the ACMP] to help with resources.
Number 2825
MS. WASSERMAN continued:
... Section 3, the planning assistance for development
and maintenance of district coastal management plans:
Pelican ... must continue to be given due deference
when it comes to coastal issues in this area. We
provide local expertise to assist the state in its
decisions concerning coastal management. But as a
small community, the Pelican coastal district relies
on help from the state as well; they have been very
helpful in the past, and we need to rely on them to
get our work done. We use the guidebooks to implement
our coastal management program.
The knowledgeable and experienced staff at DGC have
helped us with questions that come up concerning our
district. These resources must continue to be
provided for our plan to function. Something we
noticed also today is that this really affects ... the
coastal communities in the state of Alaska, and due to
the changes in the fishing industry, it's the coastal
communities in the state that are really in trouble at
this time. The [Matanuska-Susitna] Borough seems to
be doing very well. Anchorage seems to be doing
pretty well. But if you look at the coastal
communities, they're the ones that are suffering, and
an unfunded mandate, I think, will just continue to
pull us down a little bit further.
Number 2733
JOHN OSCAR, Program Director, Ceñaliulriit Coastal Resource
Service Area (CRSA), testified that the Ceñaliulriit CRSA has
been in existence for 15 years and is composed of 44 villages:
15 are traditional governments, 28 are second-class cities, and
1 is a first-class city. He explained that local residents are
largely dependent on fish and wildlife resources for their daily
sustenance, despite the fact that the fishing industry has
drastically affected [other] summertime employment. Mr. Oscar
said it has been found that local participation has always
proven to be successful in providing wise management and
mitigation of problems encountered in planning related to local
infrastructure.
MR. OSCAR explained that mining, water and sewer [systems],
[aboveground] fuel tanks, road projects, airports, and
improvements for erosion control and village infrastructure
[exist in the Ceñaliulriit CRSA]. He expressed concern that if
the Alaska Coastal Management Program and the [ACPC] are
removed, [references] to "habitat fetters" [will also be
removed]. He said the only reference in the bill is to
"critical habitat fetters". Mr. Oscar remarked, "That served to
protect subsistence and traditional fish and wildlife
resources." He said traditional and experienced knowledge has
always served to offer scientists valuable information regarding
development. He expressed concern that due deference in this
area will be nonexistent, while the department still has "every
last say to everything under the sun, basically."
MR. OSCAR said the other concern is the submittal of coastal
district [management] plans every five years. Since he is the
only person representing 44 villages, he explained that
understaffing will not allow the [Ceñaliulriit CSRA] to
successfully meet all of the requirements. He noted that the
current requirement is ten years, and he said a rewrite of the
whole program to less stringent and less specific standards and
policies will eventually create a "rubber-stamp program" for
elimination for programs that are not being implemented, as
determined by the department. Mr. Oscar said the department may
decide to disapprove the rewritten plans to begin with, for
example. He suggested that the proposed CS is still
questionable, offers much uncertainty, and seems to basically
eliminate the whole program in the end, eventually, with all the
renewals every five years.
Number 2577
REPRESENTATIVE KERTTULA asked Mr. Oscar how big an area his
district covers.
MR. OSCAR said the area serves 35,168 square miles in the Yukon-
Kuskokwim Delta, the largest refuge in Alaska, and has 8,993
miles of shoreline and 44 communities.
REPRESENTATIVE KERTTULA asked how many people work for the
[Ceñaliulriit CSRA].
MR. OSCAR said only one person currently, but whenever possible
he has somebody else helping out; with the available funding for
44 villages, it is impossible to keep up with all of the demands
for the requirements of this plan.
Number 2540
REPRESENTATIVE KERTTULA asked Mr. Oscar what his plans would be
for putting together new policies and submitting them if this
bill passed.
MR. OSCAR explained that [Ceñaliulriit CSRA] has worked with the
communities for the past 18 years to streamline and refine the
program itself, and it has to go through that process again in
meeting with all of the villages and trying to get an approval
with them. He said their concerns would certainly be revisiting
the old days [and the issues] of subsistence and rural
communities versus urban [communities], and that questions would
arise again. Mr. Oscar said right now, many people are really
uncertain about what would happen if this bill went through as
is, since it requires coastal districts to rewrite [their
plans].
Number 2488
PAT NORMAN, First Chief, Port Graham Village Council, noted that
he hadn't yet seen the proposed CS for HB 191. He expressed
concern about whether the areas meriting special attention are
still included in the process. He said Port Graham and Nanwalek
on the lower Kenai Peninsula are in one of those areas, and
mentioned the experience that [ACMP] has helped out greatly in
their own development needs and for other developments that want
to come into and around those areas.
CHAIR FATE responded that the areas in question would still be
included in the process.
Number 2408
FRANK KELTY, Member, Aleutians West Coastal Resource Service
Area (CRSA) Board, noted that he has also worked with the City
of Unalaska. Mr. Kelty thanked DNR staff for the proposed CS
for HB 191 and suggested it was much better than the original
bill. However, he said he still had concerns, and suggested
that the legislation still needs a little bit more work. Mr.
Kelty expressed concern regarding the requirement that coastal
resource districts must review and resubmit their plans for
approval every five years, and agreed with previous testimony
that the requirement should be changed to every ten years. He
said the Aleutians West CRSA has been in the middle of a
rewrite; it's on its fourth year and still not complete.
Mr. Kelty pointed out that [Aleutians West CRSA] consists of one
municipality and two villages in its coastal area, and he said
the [review] takes a lot of time and work.
MR. KELTY suggested that language in Sections 11 and 21 should
be reviewed and [clarified to specify] what DEC is going to have
control over, which might make people feel more comfortable.
Mr. Kelty said he thinks many people are concerned that DEC has
too much control or will be "going its own way" and that people
won't be able to get any input until the permits have gone out
for public review. He reiterated his belief that the proposed
CS still needs some work, and he expressed concern that this is
a [very short amount of time] for [implementing] this plan and
having it in place by 2005.
Number 2278
REPRESENTATIVE KERTTULA asked Mr. Kelty for his opinion on why
it would be important to have DEC and its standards remain as
part of its consistency review process.
MR. KELTY said in the [Unalaska] area there are seafood "out-
pole" lines and many individual power plants based in seafood
canneries that have their own diesel generation. He mentioned
concerns by residents of the community that they would like to
comment on these type of issues when permits are moving forward.
Number 2213
BOB SHAVELSON, Executive Director, Cook Inlet Keeper, told the
committee he was speaking on behalf of Cook Inlet Keepers' 500
plus members throughout the Cook Inlet watershed that are
concerned about the coastal resources. Mr. Shavelson expressed
appreciation for the administration's efforts to amend an
originally problematic bill, but remarked:
I think we still have the same problems with this
bill, in that the effect of the legislation will be
the same. There was a comment made early on, from the
administration, that the districts are not being left
out in any area at all. And I think that any honest
reading of this legislation will show that the
districts will have a severely constrained role in
local coastal decision-making under the committee
substitute.
Second point I'd like to make: ... there was also a
comment made that this was a well-worked piece of
legislation. And I would just like to suggest that
there really has been relatively little time for
coastal districts and communities to understand what's
admittedly a very complicated piece of legislation.
Third point I'd like to make, and this ... accompanies
the whole issue: there really has not been a
demonstration of facts to show that [there is] a
problem. In fact, before the [House Special Committee
on Fisheries] there was some evidence presented that
showed that the current ACMP operates in a timely and
effective fashion to get projects moving and on the
ground. So, again, this is more of a response to a
perceived problem, and there [has] been no evidence to
suggest otherwise.
The last point I'd like to make is that this is going
to be very, very costly to the state and to the local
districts. As it was noted by the administration, ...
these are very significant changes. And under the
federal rules it would appear that a full-blown
environmental impact statement and the accompanying
costs of that would be required to get these major
program changes through the National [Oceanic] and
Atmospheric Administration [NOAA].
And also, this is an unfunded mandate to the local
districts because they will not only have to
periodically review and submit for review to DNR their
district plans, but they'll have to rewrite their
plans, and we've heard some comments from the
districts on that already.
Number 2090
REPRESENTATIVE KERTTULA asked Mr. Shavelson if he had any
comment or concern about the "breaking out" of the DEC permit,
and what would happen if there is only a DEC permit and no
consistency determination.
MR. SHAVELSON offered his view that [the bill] carves out a
large segment of activities that local districts and communities
will not have an opportunity to meaningfully comment on. As the
legislation is drafted currently, it's so broad that it applies
not only to permits and different statutory functions, but also
to all the land, air, and water authorizations that DEC
possesses.
Number 1959
MARV SMITH, Community Development Coordinator, Lake and
Peninsula Borough, testified that his biggest concern is the
short notice. He said this cannot be done in six months and
asked where the funding is going to come from. He also express
concern that the bill consistently states that DNR "shall or
will ... or may" accept the plans in the districts; he said it's
kind of a double-edged sword. He stressed the need for
consistency as well. Offering his belief that this new version
is better than the first, he expressed concern that the local
comments are heard and that there is an opportunity to
participate.
Number 1820
LISA VON BARGEN, City of Valdez, began by expressing
appreciation for the reworking of the bill; she said the feeling
was that the administration really listened to the concerns and
has incorporated many of those into the [proposed CS].
Addressing Section 3, she asked that maintenance be included in
the funding that comes through; she said the bill suggests that
plans would have to be rewritten every five years, and so
funding for the continued maintenance of these plans is
extremely important. She also asked for due consideration with
regard to lengthening the time between the reviews of [local]
coastal management plans.
MS. VON BARGEN turned attention to Section 9 and said that home
rule and first-class cities that do exercise planning and zoning
authorities aren't covered under the coastal resource
definition; only those in the unorganized borough or within
boroughs that do not exercise planning and zoning authorities
are included. She noted that she was unsure whether that was
just an oversight or whether it was an intentional omission.
Number 1721
PAT CARLSON, Manager, Kodiak Island Borough, expressed gratitude
for the hard work that had been done and said the [proposed CS]
was much better than the previous version. He remarked:
We would be really hard put to deal with the review
process in six months, and even a year may be tough,
and certainly ... the continuing review process, we
would argue for more like ten years, unless there was
some dramatic change or ... some specific item that
needed review. ...
One of the big concerns I've got is ... dropping DEC
from the consistency review. ... Maybe I'm paranoid,
but there's always the possibility that maybe DEC
might make an inconsistent decision. ... We believe
that that ought to be looked at strongly, because in
the terms of air and quality and interface of
subsistence resources on a local level and ... the
residential areas and other areas of concern [that]
are great out here in the rural areas, we do not have
DEC response; we do not have DEC personnel that deal
with air and water quality on [the] island. They deal
remotely. They deal through the borough. They look
to the borough for kind of local knowledge and
enforcement. So, I'm concerned if there's that split.
The other thing that I bring up, and I've mentioned it
before ... is ... [AS] 35.30.020, which is compliance
of municipal ordinances, which requires [the] State of
Alaska [to] comply with local planning and zoning
ordinances in the same manner as other owners of
property. And I have concerns that ... there [have]
been [attorney general's] opinions and other instances
as well, unless we say otherwise.
And just to minimize confusion, I think it needs to be
really clear how ... planning and zoning interface,
because in many cases it may have some of these issues
that are in this. ... Maybe the committee could
consider having the new committee review the existing
plans. We went through tremendous trouble [for] two
and a half years to generate this thing. ... Just tell
us what's wrong and we can review that. ...
Does anybody know what went wrong with the plan to
drive this? In our area it's been pretty quiet, so
we're not aware of any big issues, ... and if there
are, we'd like to know when we can address them.
Number 1485
MR. CARLSON [in response to a question from Representative
Seaton regarding page 10, sub-subparagraphs (i) and (iii), and
whether that will encompass or preclude most of the current
enforceable policies] remarked:
I would say if the state has an issue with them, tell
us what it is so that we can work on what's unique,
rather than force us to go through the whole plan all
over again, trying to guess what's unique, because in
our case, maybe we don't think it's unique and they
do. ... It would be better to go through them all,
shred out the things that are clearly redundant and
repetitive, and ... tell us what's inconsistent and
have us focus on those, rather than trying to struggle
through the whole plan all over again, because ours is
... 80 pages.
Number 1365
KAROL KOLEHMAINEN, Program Director, Aleutians West Coastal
Resource Service Area (CRSA) Board, expressed gratitude for all
the amendments done in the bill that allow the CRSA to continue
to exist and participate in the program. She said she was going
to essentially reiterate what Mr. Kelty had to say earlier, to
emphasize how important it is to their district.
MS. KOLEHMAINEN told members that the five-year review cycle
will be very difficult, if not impossible, for districts;
depending on the extent of the review, it's complicated and very
difficult to complete, particularly if someone is trying to do a
good job and ensure that it's perfect. The other point is the
difference in the language between the main language for DNR
regarding plan approval and all of the "shall and will" language
as it relates to how plans need to be constructed. It would
seem that if the districts have met all of the criteria, then
the plans should be able to be approved, or it should be
identified what would need to be changed to have them be
approved, she said.
MS. KOLEHMAINEN referred to Section 14 and said she'd been
trying to consider how difficult that criteria would be for some
districts to meet by virtue of the fact that the language in
[sub-subsection] (ii) ends in "and" rather than "or". She
reiterated that it would be difficult to complete plan revisions
in a year.
Number 1109
KEN DONAJKOWSKI, Manager, Health Safety Environment (HSE),
Conoco Phillips Alaska, Inc., testified on behalf of the Alaska
Oil and Gas Association (AOGA). He explained that AOGA remains
firm in its commitment to reform the ACMP and applauds the
administration's interest in reforming it. He noted that [AOGA]
had reviewed previous drafts, but had not obtained the most
recent proposed CS until this meeting and didn't know exactly
what was it contained.
MR. DONAJKOWSKI expressed concerns about the draft that had been
reviewed by AOGA and said, consequently, AOGA had developed
specific language and submitted that to the administration but
did not know if [those changes] had been considered in the
current proposed CS. In addition, AOGA's editorial comments
with regard to the proposed specific language had been provided
to the committee. He highlighted the critical considerations
that AOGA applied in its development of the modifications by
saying there must be recognition that state and federal law is
already in place, is comprehensive, and is protective of coastal
resources; thus local enforceable policies should only address
unique local concerns that are not addressed by those state and
federal laws. He noted AOGA's belief that uses of state concern
must be the priority with regard to enforceable policies and
that local enforceable policies should not arbitrarily or unduly
be restricted or exclude uses of state concern.
Number 0972
MR. DONAJKOWSKI said AOGA believes DEC's land, air, and water
statutes and regulations are inherently consistent and subject
to extensive public comment and review; therefore, that should
be clearly articulated in the proposed CS; such permits and
authorizations from DEC should then not delay any other
associated agency permits or consistency reviews. Mr.
Donajkowski suggested the scope of a review should be limited to
activities within the geographically defined coastal zone
subject to federal or state permits authorizations and so forth.
He said that there must be effective flexibility for large,
complex projects and that there are certainly some indications
in the administration's comments that they have addressed that.
Consistency reviews must be held to a definitive timeframe so
the process isn't subject to arbitrary delays. He said ACMP
wasn't intended to, nor should it, emulate the so-called "NEPA"
process as outlined in the [National Environmental Policy Act of
1969]. Mr. Donajkowski said AOGA is committed to working with
the administration and interested legislators as this bill moves
through the committee process.
Number 0860
REPRESENTATIVE KERTTULA referred to the uses of state concern
and asked Mr. Donajkowski what he would change from the current
program.
MR. DONAJKOWSKI said he wants it to be certain that a local
matter cannot simply override de facto issues of concern to the
state, so that there isn't a "suboptimization" of the state's
interests for local interests.
REPRESENTATIVE KERTTULA said currently the program protects
these special areas and special uses, but it also has that
overriding concern for uses as a state concern. She asked Mr.
Donajkowski if he could offer an example or if it was just
something he wanted to ensure is maintained.
MR. DONAJKOWSKI told Representative Kerttula that it's something
[AOGA] wants to ensure is very clear. He said the ACMP history
is fraught with lawsuits, court decisions, and interim
legislative fixes.
REPRESENTATIVE KERTTULA said any permitting system, including
DEC's, experiences lawsuits. She asked if it was not just
coastal management that [experiences lawsuits].
MR. DONAJKOWSKI replied yes, and said [AOGA] has the same
interest with any regulation or legislation that applies to
this. In response to Representative Seaton [who'd asked about
offshore oil and gas], he indicated AOGA would like to be clear
that if something is in the coastal zone as defined, it would
have to go through the process, but if it's outside that
geographical boundary, it would be clear that going through the
process isn't required.
Number 0656
MR. DONAJKOWSKI [in response to a comment by Representative
Seaton about projects outside the coastal zone that will impact
the coastal zone area] said the coastal zone was originally
defined to be far from the coastal zone shoreline, in
anticipation of encompassing those projects that would directly
impact the coastal zone. He said the current process requires
one to demonstrate that the project won't [have an impact];
because it's already so far beyond that, one wouldn't know in
advance whether there will be a decision that, in [AOGA's] view,
can be arbitrary as to whether or not [a project can be deemed
as] potentially impacting the zone. He said the coastal zone
has already been defined large enough to mitigate any project
that would have an impact, and this provides certainty about
whether one is in the coastal zone or not.
Number 0554
REPRESENTATIVE KERTTULA asked Mr. Donajkowski if the outer
continental shelf (OCS) and the federal development that happens
there should be taken out.
MR. DONAJKOWSKI replied absolutely not.
REPRESENTATIVE KERTTULA mentioned having that in the original
definition.
MR. DONAJKOWSKI replied absolutely.
Number 0513
SARAH GILBERTSON, Policy and Program Coordinator, Alaska
Municipal League (AML), testified that AML represents 140
communities around the state; all of its members support
streamlining and economic development, but AML had not taken a
position of the current proposed CS because AML had been working
with the administration to come up with a CS. Ms. Gilbertson
explained that the [administration] had asked for community
input; teleconferences had been held, there had been e-mails
back and forth, and [AML and the administration] had been
working together.
MS. GILBERTSON said she thought the proposed CS demonstrated
that AML's and the communities' concerns had been heard. She
indicated testimony demonstrates that a lot of AML members still
have concerns. For example, one concern is the number of years
that communities will have to review and resubmit [coastal
management] plans.
Number 0393
MS. GILBERTSON explained that many members would like to change
that [requirement] from five to ten years because it is such a
huge process to go through. Also, some communities only have
six months to review and resubmit or rewrite their enforceable
policies. Ms. Gilbertson mentioned concerns that Mr. Kelty had
expressed during his testimony regarding the [time it takes] to
travel to 68 different villages to hold hearings. She noted
that [this is another reason] for the [request] for more time.
MS. GILBERTSON expressed concern about the limitation of local
authority or local participation. She remarked, "That comes
from breaking out DEC from the consistency review process as we
know it now." She reiterated her belief that the proposed CS is
much better than the original bill, and she commended the
administration for working with AML to come up with something
better. However, in light of the concerns that were noted, she
asked that the committee take the next week to fine tune this
bill to make it better.
Number 0301
REPRESENTATIVE GATTO asked Ms. Gilbertson what she thought would
make the bill better.
MS. GILBERTSON reiterated her suggestion of changing the five-
year [coastal management plan review requirement] to every ten
years, and of considering giving a year to those communities
[that only have] six months to rework and rewrite their
enforceable policies. She said this would be a lot better and a
lot easier for people like Mr. Kelty who go to the [68 villages]
and hold hearings. Ms. Gilbertson said she didn't know if there
was anything that could be done on the DEC side of things. She
reiterated that this would [be a good reason] to use the next
week to really talk about that issue.
MS. GILBERTSON [in response to Representative Seaton regarding
whether communities represented by AML are concerned that
Sections 7, 10, and 13 remove the public hearing and local input
process] surmised that he was referring to procedural changes
because of the elimination of the Alaska Coastal Policy Council.
She said AML had some of the same concerns and had talked with
the administration yesterday. In terms of DNR's coming up with
the new standards, she said local governments will have to
comply with that process; it's still subject to the public
comment process, so local communities and governments will still
have a say and be able to comment on those new standards as the
administration goes through the regulation process.
Number 0041
DOUGLAS MERTZ, Prince William Sound Regional Citizen's Advisory
Council (PWSRCAC), testified that [PWSRCAC] is composed of
communities, municipalities, and other entities in the area
impacted by the Exxon Valdez oil spill; these are the folks who
know firsthand what can happen to local concerns, local
livelihoods, and local resources when new events happen in that
area.
TAPE 03-32, SIDE A
Number 0001
MR. MERTZ said in reading over the language of the proposed CS
and in listening to comments from the administration, [PWSRCAC
members] had increasing concerns about the "disconnect" between
the apparent intention of the drafters and the language in the
bill. From his experience as a former assistant attorney
general, he highlighted what a problem it is when the drafters
have an intention that doesn't make it into the language of the
bill in a clear and unambiguous manner; it is an absolute
disaster. Mr. Mertz remarked:
In this case, ... in Section 11 it says that DEC
statutes and [regulations] regarding protection of
air, land, and water quality are the exclusive
enforceable policies of the ACMP. Our friends ... put
it in terms of "that's so," but that's not counting
matters of local concern. Well, that section doesn't
say so, and, in fact, even if it did say so, if you
turn to the definition of matters of state concern,
which are by definition not matters of local concern,
in Section 42 you have all kinds of restrictions on
what can be considered a matter of local concern.
Marty [Rutherford] gave the eelgrass example.
Well, ... under Section 42, if two adjacent CRSAs both
have concerns about the effect of a particular project
on eelgrass, then under Section 42 it's no longer a
matter of local concern; it's a matter of state
concern, and hence the local entities cannot put it
into an enforceable policy - only the state can.
That's an example of what we see in the language
itself as putting enormous burdens and restrictions
... on the ability of the local entities to come up
with any enforceable policies that aren't in effect
preempted here.
Number 0197
It is difficult to come up with anything, including
eelgrass, which doesn't come within air, land, [or]
water quality. Eelgrass certainly is situated into
their land or water, depending on where the tide is.
I think that one arguably could be not something that
a local entity could do anything about. ...
Section 21, which is the one that says the reviewing
entity, reviewing for consistency purposes shall
exclude from its existence consistency review and
determination and activity authorized by DEC under its
air, land, and water quality requirements - does this
mean that a local reviewing entity cannot find a
project inconsistent with its local coastal management
plan if the local requirements in any way relate to
land, water, or air quality? You could certainly read
it that way. ... We hope their intention is not that.
But ... if that intention is to be put in the
statutes, it's going to require a definite rewrite.
Here's another example of a problem: Section 14 says
the department may approve coastal management plans
that meet ... detail-listed criteria. Well, the word
"may" is ambiguous, and our friends here have said it
definitely gives them discretion. Does it give them
discretion to reject a plan that meets all of the
criteria that are set out in that statute, taken
literally? It sure sounds like they can. And yet it
doesn't say what criteria ... the department can use
to reject the plan that meets the criteria. These are
examples of continuing problems with an enormously
complicated bill.
We think the only way to avoid having this become an
ultimate disaster is to put on the brakes, send this
... to a task force composed of stakeholders, and have
them take the time to do it right, to come up with a
... bill that takes whatever consensus emerges from
that process and puts it in clear and unambiguous and
enforceable language that nobody can quibble over its
interpretation of.
Number 0427
REPRESENTATIVE KERTTULA noted that she had some of the same
concerns. She turned attention to Section 14, subparagraph (C),
sub-subparagraph (ii), which read in part, "not adequately
addressed by state or federal law"; she said she had never seen
language like that before. She asked Mr. Mertz if he had ever
seen that language used in statute.
MR. MERTZ indicated that he had not. He said this is an example
of the kind of ambiguous language that leaves a lot of questions
up in the air. In response to Representative Seaton [who'd
directed attention to Section 14, sub-subparagraphs (i) through
(iii) and asked how many existing coastal policies would qualify
under that criteria], Mr. Mertz said he could not provide a
number; in looking over existing policies, however, he thought
someone could come up with a legal argument that almost
everything in every one of them runs afoul of one or the other
of these restrictions. He suggested that doesn't mean,
necessarily, in the end that a court would say they're all no
good or that the department would toss them out. But there's
trouble ahead because a reasonable person could interpret it
that way, he concluded.
Number 0608
REPRESENTATIVE GUTTENBERG mentioned testimony regarding changing
the timeline for [coastal management plan] reviews from five to
ten years. He indicated the [testimony] is usually about
resource and financial problems related to conducting a review.
He asked, if the aforementioned problems weren't an issue, what
an adequate time period to conduct the reviews would be.
MR. MERTZ said he doesn't know.
Number 0670
TERI CAMERY, Planner, City and Borough of Juneau, noted that she
was testifying before the committee with approval from the city
manager to represent Juneau. She said she appreciates the
efforts of the administration to continue working on this bill
and suggested that there are definitely some improvements in the
proposed CS. However, she offered her belief that this version
still strips away a significant amount of local control in
various ways, and places the power of approving local policies
and plans into the hands of a single agency, which is
problematic. She said it creates a great deal of uncertainty
for CBJ.
MS. CAMERY noted that [CBJ] has had less than 48 hours to review
the proposed CS, and she asked for more time to review it. She
said this is a complicated bill with many major changes from the
last version. Although it is an improvement over the first
[version], she said [CBJ] would really like to review a more
carefully considered third version.
Number 0758
MS. CAMERY suggested having a working group. She offered her
understanding that the administration has been working with
local districts to some extent; she said CBJ has not been
involved in that and has many concerns it would like to bring
out. She offered her belief that the best way to approach a
change to the program of this magnitude is to establish a
working group of districts, agencies, and industry. She
acknowledged that the coastal management plan does have many
problems and expressed her desire to find a way to address those
problems in a way that preserves local control and oversight.
She explained that this legislation requires a plan revision
within six months, subject to approval by DNR, and requires
those local policies to be concise, nonduplicative, and
enforceable. It appears that the local policies cannot address
issues related to state permits, she indicated.
MS. CAMERY said this [legislation] is broad and vague; there's
also the larger issue of whether state agencies can adequately
perform their duties. She remarked, "I say this without any
criticism toward employees of DEC and [the Alaska Department of]
Fish and Game." She said very often in [CBJ's] local plan
review, it is very difficult receiving adequate comments from
these agencies because their budgets have been cut so
extensively by this administration and previous administrations.
In effect, this approach is not allowing local districts to have
any plans that duplicate state policies or address any similar
issues; it's saying "trust the state agency," she remarked.
Number 0888
MS. CAMERY explained what happens: for very valid reasons, the
state agencies can't effectively address their responsibility.
She offered her belief that it's a real consideration that
hasn't been adequately addressed. Many districts have mentioned
the difficulty of revising their [coastal management] plans
within six months. Ms. Camery said that from Juneau's
perspective, that would be absolutely impossible. Those changes
would have to go through a public process, be reviewed by
[CBJ's] law department, and go to [CBJ's] planning commission
and assembly. She requested that the [aforementioned deadline]
be increased to at least a year.
MS. CAMERY also requested changing the five-year review to every
ten years; reiterated her suggestion that local districts need
to be included in a consistency review process for DEC, rather
than removed from that process; and stressed the need for local
districts to be included and to have due deference and approval
of the plans by DNR. She said it is puzzling that after so much
work that went into these original policies, and without any
criticisms that she was aware of on the local level, this
expansive revision is being requested. She expressed very
strong concerns about current elements that would be written out
because of some perceived overlap with a permit.
Number 1022
REPRESENTATIVE KERTTULA asked Ms. Camery how the local
enforceable policies are currently used in the consistency
reviews.
MS. CAMERY went on to say that through DNR, all [involved
parties] come together for a pre-application meeting and discuss
the project as a whole; that format is beneficial to the
developer, who gets informed about what permits are needed, what
local permits are needed, and areas of special concern. Many
times, the developer can revise the project and address concerns
before the consistency review begins; then, through the coastal
management timeline, CBJ will submit its comments and evaluate
how the project is consistent with different elements of the
coastal management plan that could include [CBJ's] stream
setbacks or the Juneau wetland management plan, which has very
specific wetland standards, especially for waterfront areas,
which are areas preferred for development. The Juneau plan has
a number of unique elements that are felt to be very specific.
Ms. Camery explained that those comments would be turned in and
then included in the final permitting and (indisc.).
Number 1126
REPRESENTATIVE KERTTULA asked how often projects are rejected
because of a CBJ comment.
MS. CAMERY said in the three years that she's been with the
city, she could think of only one incident in all the reviews
she'd done; it was a case where the applicant came back with a
modification that basically redid everything that [CBJ] and the
applicant had agreed that the applicant wouldn't do.
Number 1162
REPRESENTATIVE KERTTULA asked Ms. Camery how many permits she
reviews a year.
MS. CAMERY said for the ACMP, approximately 40. In response to
Representative Seaton [who'd asked whether she thought CBJ's
ordinances would still apply under the proposed CS, noting that
the previous version specified that Title 29 would still be
applicable], Ms. Camery said it was very confusing to her.
Currently, [CBJ's] coastal management program is part of
Title 29 requirements, part of the local code adopted into local
ordinance. If [CBJ's] plan changes significantly through DNR's
approval process, then it's hard to know how all of that would
wash out. [CBJ] could have one coastal management plan approved
by DNR, but still have another plan in the local ordinance, so
it could be very problematic.
[Representative Seaton asked that someone with the
administration respond.]
Number 1260
CHAIR FATE noted the submittal of another proposed CS by AOGA [a
work draft labeled 03-0069 bil2.doc, 4/16/203]. He indicated he
would hold the bill until 04/23/03 to allow time for a thorough
review of the current bill version; to gather proposed
amendments; and for staff to work on the bill with AOGA, other
interested parties, and the administration.
CHAIR FATE mentioned Mr. Shavelson's comment that he didn't
think the proposed CS would save any permitting time, and that
the old ACMP was efficient and effective and saved about as much
time as this would. Chair Fate said it was pointed out to him
during his discussion with members of the administration that
there would be a savings of time. He asked if the attempt was
to shorten the permitting period and yet have due process still
available.
Number 1422
MS. RUTHERFORD said one of the things Mr. Shavelson referred to
during a House Special Committee on Fisheries meeting is that
the average review time of a consistency determination is 50.8
days. She said [the time period] doesn't include a clock
stoppage; when DGC used to calculate the average time for a
consistency review, it didn't identify the amount of time when
the process was stopped while a particular agency requested
additional information. Ms. Rutherford said that clock stoppage
can vary from one week to one year. She talked about one
particular project that was supposed to have a 50-day review but
that was under review for 465 days.
MS. RUTHERFORD suggested that sometimes the statistics don't
always capture the entire picture. She referred to a discussion
about removing air, land, and water quality standards from the
consistency review, and letting DEC permit decisions that [are
found consistent]. Ms. Rutherford said in doing that, many of
DEC's conflict permit decisions will be removed from the time
that it takes to complete a consistency review. She said
someone can get those permits that are part of the consistency
review, apart from DEC's determination, out and completed while
DEC is still determining whether or not those activities subject
to its air, land, and water quality standards are appropriate
and can be deemed consistent by that agency.
MS. RUTHERFORD referred to Fort Knox, where it was identified
that because it was not subject to a consistency review, and
because the permit was not wrapped into a consistency review, 12
to 18 months was saved. Ms. Rutherford offered her belief that
there will be extensive time savings associated with these two
elements. She noted that Areas Meriting Special Attention
(AMSAs) are retained in this proposed CS, so that is not going
to be a problem. She mentioned concerns about [funding] and
said the [department] is currently attempting to identify what
kind of federal grant monies would be available to assist the
districts in completing these projects.
MS. RUTHERFORD turned attention to concerns expressed by AOGA
and said the proposed CS was available on the [Internet] as of
[04/11/03], and that the current proposed CS doesn't capture any
of AOGA's proposed amendments. She mentioned a concern
expressed by AOGA about a test, under the current program, that
has to occur as to whether or not something is subject to a
consistency review, even though it might be outside the boundary
of the district.
Number 1642
MS. RUTHERFORD said this proposed CS does resolve that problem;
it states clearly that there is a "bright line." She remarked,
"The district boundary, as it currently was approved by the
coastal policy council, is the bright line; if you are outside
of that district boundary, then you are not subject to a
consistency [review]; if you are inside that boundary, you are
subject to a consistency [review]." She said the reason for
this is because Alaska has some of the most extensive coastal
boundaries in the nation, and she asserted that this proposed CS
does not eliminate the due deference that is provided by the
current program to the local districts. Ms. Rutherford
explained that this would not change; it's an element of a
project review and would be retained for the local districts.
Number 1706
MR. SHAVELSON responded:
The information that I previously cited was from the
Division of Governmental Coordination, and I don't
believe that clock stoppage was omitted from the
statistics that I read that showed, for example, that
the average length of a 30-day review, with
extensions, was actually 28.2 days. So, I think
there's some disagreement over those facts there, and
I would be happy to share them with the committee.
Another issue with the delays is that the primary
concern from some in the development community
previously had been that there was [an] appeals
process under the coastal management program that
caused a lot of delays. And this legislature fixed
that last year. So, a big impediment has been removed
there. So I do question that ... the changes now are
going to result in significant savings.
And one last point is that ... by separating out the
[DEC] permits, we're actually creating a dual process
and, in a way, complicating things and making it more
cumbersome. So I am not sure that we're going to see
any efficiencies coming out of that, but what we will
see is local districts and citizens in coastal
communities confused by having to weigh in, in
different arenas.
Number 1785
CHAIR FATE, upon determining no one else wished to testify,
closed public testimony. [HB 191 was held over.]
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 3:02 p.m.
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