Legislature(2007 - 2008)BARNES 124
04/04/2008 01:00 PM House RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HB243 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 243 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE RESOURCES STANDING COMMITTEE
April 4, 2008
1:31 p.m.
MEMBERS PRESENT
Representative Carl Gatto, Co-Chair
Representative Craig Johnson, Co-Chair
Representative Anna Fairclough
Representative Bob Roses
Representative Paul Seaton
Representative Peggy Wilson
Representative Bryce Edgmon
Representative David Guttenberg
Representative Scott Kawasaki
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 243
"An Act relating to the Alaska coastal management program."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 243
SHORT TITLE: COASTAL MANAGEMENT PROGRAM
SPONSOR(S): REPRESENTATIVE(S) JOULE
04/26/07 (H) READ THE FIRST TIME - REFERRALS
04/26/07 (H) CRA, RES
03/20/08 (H) CRA AT 8:00 AM BARNES 124
03/20/08 (H) Moved CSHB 243(CRA) Out of Committee
03/20/08 (H) MINUTE(CRA)
03/27/08 (H) CRA RPT CS(CRA) NT 3DP 1DNP 1NR
03/27/08 (H) DP: CISSNA, SALMON, OLSON
03/27/08 (H) DNP: FAIRCLOUGH
03/27/08 (H) NR: DAHLSTROM
03/27/08 (H) FIN REFERRAL ADDED AFTER RES
04/04/08 (H) RES AT 1:00 PM BARNES 124
WITNESS REGISTER
REPRESENTATIVE REGGIE JOULE
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as the sponsor of HB 243.
CHRISTINE HESS, Staff
to Representative Joule
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Answered questions regarding HB 243.
RANDY BATES, Director
Division of Coastal and Ocean Management
Department of Natural Resources
Juneau, Alaska
POSITION STATEMENT: Testified that the administration, the
Department of Natural Resources, and the Division of Coastal and
Ocean Management oppose HB 243.
EDWARD ITTA, Mayor
North Slope Borough
Barrow, Alaska
POSITION STATEMENT: Testified in support of HB 243.
BARRETT RISTROPH, Assistant Borough Attorney
Law Department
North Slope Borough
Barrow, Alaska
POSITION STATEMENT: Answered questions regarding HB 243.
JOHNNY AIKEN, Director
Department of Planning and Community Services
North Slope Borough
Barrow, Alaska
POSITION STATEMENT: Answered questions regarding HB 243.
GORDON BROWER, Land Management Regulation Manager
Department of Planning and Community Services
North Slope Borough
Barrow, Alaska
POSITION STATEMENT: Answered questions regarding HB 243.
JOHN CHASE, Community Planner & Coastal Area Specialist
Northwest Arctic Borough
Kotzebue, Alaska
POSITION STATEMENT: Testified in support of HB 243.
CHRIS KRENZ, PhD, Arctic Project Manager
Oceana
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 243.
TERI CAMERY, Planner
Community Development Planning Division
Community Development Department
City & Borough of Juneau (CBJ)
Juneau, Alaska
POSITION STATEMENT: Testified in support of HB 243.
ACTION NARRATIVE
CO-CHAIR CRAIG JOHNSON called the House Resources Standing
Committee meeting to order at 1:31:34 PM. Representatives
Seaton, Roses, Wilson, Gatto, and Johnson were present at the
call to order. Representatives Guttenberg, Edgmon, Kawasaki,
and Fairclough arrived as the meeting was in progress.
HB 243-COASTAL MANAGEMENT PROGRAM
1:31:45 PM
CO-CHAIR JOHNSON announced that the only order of business would
be HOUSE BILL NO. 243, "An Act relating to the Alaska coastal
management program." [Before the committee was CSHB 243(CRA)]
CO-CHAIR JOHNSON stated that his intention is to take testimony
on HB 243 and then set it aside until after the regulation
review committee meeting tomorrow at which some of these issues
will be taken up. He said he will keep the bill before the
House Resources Standing Committee in case those issues cannot
be worked out by the regulation review committee in a manner
satisfactory to the sponsor.
1:33:01 PM
REPRESENTATIVE REGGIE JOULE, Alaska State Legislature, prime
sponsor of HB 243, acknowledged that he and Co-Chair Johnson had
agreed to hold the bill, but to have the hearing and public
comment. He testified that HB 243 would establish a seven-
person Alaska Coastal Zone Policy Board consisting of three
resource agencies - the Department of Natural Resources (DNR),
the Department of Environmental Conservation (DEC), and the
Alaska Department of Fish & Game (ADF&G) - and four regions that
cover all of the coastal districts of the state. The seats
would be governor appointments. This is in comparison to the
old board that used to be in place and consisted of 14 members -
9 from coastal communities and 5 from agencies. The [new]
policy board would approve the regulation changes and district
policies, thus providing the balance that is needed for the
review process and to allow the areas impacted by development to
become part of the process again.
REPRESENTATIVE JOULE noted that his district includes Prudhoe
Bay, the Arctic National Wildlife Refuge, Point Lay, and Red Dog
Mine, and therefore contains much of the state's resource wealth
for oil, gas, and coal. Under HB 243 local people will be
brought back to the table, he said. Who would know better about
how to develop those resources than a partnership between the
State of Alaska and the stakeholders? In the history of the
Coastal Zone Management Program many projects have come to
fruition with a policy board in place, including the Green's
Creek Mine, the Red Dog Mine, the Kensington Mine, all Outer
Continental Shelf (OCS) oil and gas lease sales, all National
Petroleum Reserve-Alaska (NPR-A) lease sales, various other oil
and gas leases, cruise ship docks in Juneau, a processing plant
in Auke Bay. No projects have been stopped because of local
involvement.
1:37:37 PM
REPRESENTATIVE JOULE said responsible development brings jobs
and spreads economic wealth around the state. Even with this
policy board, DNR would still retain the authority to determine
if the consistence review criteria are met. Alaska's coastal
zone includes more that 44,000 miles of coastline and it can
extend inland along river drainages as far as 250 miles. There
have been some problems with that, he acknowledged, but this is
actually a smaller district than what used to be in place. This
mirrors what the federal government has done. This would bring
back into the arena both the DEC Division of Water Quality and
the DEC Division of Air Quality; they would receive consistency
reviews, which is important because of proposed development on
the OCS.
REPRESENTATIVE JOULE argued that HB 191, passed under the prior
administration, has had enough opportunity to see if it works.
He said he thinks that what the committee will hear today from
coastal communities is that HB 191 has not worked. The
communities are very dissatisfied with the process and have
asked that HB 243 be put forward.
1:39:37 PM
REPRESENTATIVE ROSES asked whether he heard correctly that no
projects have been stopped because of local participation.
REPRESENTATIVE JOULE responded correct.
REPRESENTATIVE ROSES inquired about the history since passage of
HB 191.
REPRESENTATIVE JOULE explained that having a Coastal Policy
Board has allowed the different entities to come to the same
table to address all of these issues, as opposed to each doing
it in isolation. There was no mediation at any time in the
process when the prior board was in place, which was much bigger
and which had further-reaching authority. Since the
implementation of HB 191, there has been at least three requests
for mediation from coastal districts. Each of the agencies is
operating in isolation. He said that in his opinion it has been
rather exclusive for DNR to take on some of these issues on its
own. Bringing the people to the table falls directly into
comments that are heard about the constitution and how the state
is going to develop its resources to the maximum benefit of all
its residents.
1:42:04 PM
REPRESENTATIVE ROSES asked whether any lawsuits have been filed
as a result of decisions that have been made.
REPRESENTATIVE JOULE replied he does not know how to answer
this. There has been a lawsuit having to do with OCS issues.
He presumed that Representative Roses' question is whether
lawsuits can be avoided by including people in the process and,
for the most part, he thinks the answer is yes.
REPRESENTATIVE SEATON inquired whether Representative Joule's
district includes boroughs.
REPRESENTATIVE JOULE answered his district includes the entirety
of the North Slope Borough and the entirety of the Northwest
Arctic Borough, as well as Shishmaref.
1:43:32 PM
REPRESENTATIVE SEATON expressed his concern that the impetus for
HB 191 was to streamline things, yet the process of everyone
sitting at one table was broken apart. He understood that with
this now broken apart, municipalities as boroughs are outside of
the consistency review when they have an ordinance or code
covering that and those permits have to be settled separately.
He inquired whether, prior to the implementation of HB 191, any
of Representative Joule's municipalities had adopted into their
code any of these areas so that there is now an additional
permitting process in addition to the consistency review.
REPRESENTATIVE JOULE responded that in trying to meet the intent
of what passed and the changes that were made, he knows there
have been efforts by the two coastal communities of both
boroughs. They have been very active in developing their local
policies and have submitted them to DNR, he said. There are
people from both districts that could better answer the
question, but he knows that in one of the district's only 1
policy was approved out of the 40 that were submitted to DNR for
approval. So, there has not been a lot of success, but there
has been a lot of effort. With only one entity in control it
has been difficult for the coastal communities to feel like they
are making any progress and it has generated a lot of
frustration.
REPRESENTATIVE SEATON related that the Kenai Peninsula Borough
adopted into municipal code a number of those policies and now
if someone wants to get a project they have to go through the
consistency review as well as go for a permit for those same
things through the borough. So the streamlining process
resulted in two sets of permits in those areas. He requested
that when the boroughs testify they let the committee know
whether they adopted into municipal code or whether they did
those policies prior to enactment of HB 191 so that they are now
enforceable on a borough level independently of a consistency
review.
1:46:58 PM
REPRESENTATIVE WILSON asked whether the three cases of mediation
were from the same borough or from throughout the state.
REPRESENTATIVE JOULE said he thinks two of the mediation cases
are in the northern part of the state and one is in Southeast.
REPRESENTATIVE FAIRCLOUGH inquired whether [CSHB 243 (CRA)]
still includes the transfer of grant management responsibilities
to a policy board versus an actual department.
REPRESENTATIVE JOULE deferred to his aide.
CHRISTINE HESS, Staff to Representative Joule, Alaska State
Legislature, replied yes, that provision is still in the bill.
REPRESENTATIVE FAIRCLOUGH asked why having a policy board, which
has a conflict of interest because it has a vested interest, is
a good thing.
MS. HESS answered the coastal district representatives would be
representing all the coastal districts and the best interest of
all the coastal areas. Also, those representatives would be in
the best position to know how the grant money could be used in
the unique circumstances of each of their districts.
1:49:32 PM
REPRESENTATIVE FAIRCLOUGH referenced Section 46.40.040 (E) in
Version C [labeled 25-LS0896\C, Bullock, 2/22/08] of the bill
which, according to testimony in the [House Community and
Regional Affairs Standing Committee], would create confusion
amongst the departments. She asked Representative Joule to
address this as the bill moved out of that committee before
questions could be asked in this regard. In response to Co-
Chair Johnson, Representative Fairclough said Version C is what
passed out of the House Community and Regional Affairs Standing
Committee and she is unsure where Version E [labeled 25-
LS0896\E] came from.
REPRESENTATIVE JOULE deferred to the people online for
addressing this issue.
CO-CHAIR JOHNSON stated he is not prepared to adopt Version E at
this point because this is primarily a discussion.
1:51:15 PM
REPRESENTATIVE EDGMON noted he is a co-sponsor of HB 243 and is
supportive of the prime sponsor's efforts. He requested the
sponsor's viewpoint of subsistence and the importance of having
a local voice weigh in regarding development.
REPRESENTATIVE JOULE explained that subsistence is included in
this bill to get the issue out there. Subsistence has always
been a big issue in any development that has occurred,
especially in rural Alaska. The state agrees with why these
companies are here - they want to invest a lot of money to make
money, provide jobs, and get the resources to market. He said
the reason this needs to come back to local folks is because
when the companies are all done all of Alaska is going to need
the renewable resources that are going to remain - the fish, the
berries, and the animals. For those who choose to make Alaska
our home, that is the magic of this state. There is nobody
better able than the local people to find the balance for how
development can occur and still provide for safeguards of
subsistence. The North Slope and Red Dog Mine are excellent
examples of forging ahead with those things in mind. He related
that, outside of the coastal zone in the Red Dog Mine, the
agreement with NANA Regional Corporation is that they have a
subsistence committee and that this committee has the option to
close down the mine if things run awry.
REPRESENTATIVE EDGMON pointed out that his district has the
largest sockeye fishery in the world, the billion dollar ground
fishing center in Unalaska, the Pebble Mine, a potential
offshore lease sale, and a crab fishery in St. Paul. He
stressed to the committee how important this local voice can be
if properly utilized.
1:55:05 PM
REPRESENTATIVE GUTTENBERG inquired whether the version of HB 243
that is labeled 25-LS0896\E is the version that passed out of
the House Community and Regional Affairs Standing Committee.
CO-CHAIR JOHNSON understood that Version C was a work draft that
became Version E, and Version E is what passed out of the House
Community and Regional Affairs Standing Committee.
REPRESENTATIVE FAIRCLOUGH clarified she does not know what
passed out because she did not approve it passing out. She said
she had a "C" working document that she made all her notes on,
but she had "an A, a C, and an M" so she does not know if "E" is
what the committee passed out.
CO-CHAIR JOHNSON stated his staff indicates that "C" was a work
draft that became "E" and the House Resources Standing Committee
is working off of "E".
1:56:27 PM
CO-CHAIR GATTO said the fiscal note of $1.3 million is big.
REPRESENTATIVE JOULE responded that the fiscal note in front of
him is for $117,200 and the fiscal notes being referenced by Co-
Chair Gatto are news to him.
CO-CHAIR GATTO related there is one fiscal note for [$1.184
million from DNR], one for $10,000 [from DEC], and one for
[$117,200 from DEC] for a total of [$1.3] million.
REPRESENTATIVE JOULE replied he had not been made aware of those
fiscal notes and those fiscal notes would ensure that the bill
would go to the House Finance Committee if passed out by this
committee. So, this is by no means done, he said.
1:58:57 PM
RANDY BATES, Director, Division of Coastal and Ocean Management,
Department of Natural Resources, thanked the committee on behalf
of the administration, the department, and his division. He
stated he is providing testimony on Version E of CSHB 243(CRA)
and that he will address three topics: an overview of the
Alaska Coastal Management Program (ACMP), the Department of
Natural Resources' scheduled program re-evaluation, and comments
on the proposed legislation.
MR. BATES drew attention to the division's written overview of
the ACMP and specified:
The ACMP, or the Alaska Coastal Management Program, is
a federally authorized state program. Resource
development projects located within or affecting the
coastal zone of the state and that require certain
state or federal permits are subject to the ACMP.
This means the projects - resource development
projects - must comply with the enforceable policies
of the ACMP, the state regulations, and the coastal
district enforceable policies. The ACMP is a
networked program, and that involves and balances the
state resource agencies, local government, applicant,
and public interest in the review of these resource
development projects. The ACMP serves as the state's
voice on activities requiring federal agency permits
and on federal agency activities that affect the
coastal uses and resources in the state's coastal
zone. This is a critically important program. It is
critically important especially when you realize that
it is ... one of the state's only formal entrées into
the decision making that occurs on federal lands, be
it the vast Outer Continental Shelf or the expansive
federal lands that are within the coastal zone. There
were statutory and regulatory changes that were made
in 2003 that substantially affected the coastal
program. It is these changes that have frustrated and
distanced the coastal districts. Some of the
statutory changes made in 2003, among other things,
required a rewrite of the ACMP implementing
regulations and required that all coastal districts
revise their coastal management plans to comply with
the new rules. As of today, there are 28 coastal
districts participating in the coastal management
program. There are 18 of those 28 plans that are in
effect. There are two plans that have been through
the DNR and the federal review and approval process
but they are pending local adoption, meaning the
assemblies or councils of the governing body of the
coastal district must adopt those plans.
2:02:47 PM
MR. BATES, in response to Co-Chair Gatto, reiterated: "[Eighteen
plans] are in effect, meaning projects that are proposed within
the areas of the coastal districts must comply with those
enforceable policies."
MR. BATES continued his testimony:
There are four plans that are pending federal review.
That means we have submitted them to our federal
granting agency who has federal oversight and approval
authority. The response from federal agency is due
April 21 [2008]. There is one plan that is in the
final mode of revision - it has been through DNR
review and approval and it is pending submission for
federal review. There are three coastal district
plans that are still under mediation. Representative
Joule mentioned that process.
MR. BATES, in response to Co-Chair Johnson, stated the coastal
districts that remain under mediation are the North Slope
Borough, the Northwest Arctic Borough, and the Bering Straits
Coastal Resource Service Area. In further response to Co-Chair
Johnson, Mr. Bates reiterated that, as of today, the plans of 18
of the 28 districts are in effect, 2 are through departmental
and federal review, 4 are pending federal review, 1 is pending
submission, and 3 are subject to mediation.
2:05:14 PM
MR. BATES continued:
It is the coastal district frustration with these
coastal plan rewrites that has led us to this CSHB 243
and the companion bill on the senate side.
The second topic I would like to talk quickly about is
the Department of Natural Resources' scheduled program
evaluation. You should have a letter in your packet
from me dated February 22 [2008]. DNR does ...
recognize the frustrations of the coastal districts
and the distance that has been created in the
partnership, and we know that the coastal districts'
pain and anger is real. In response to these
questions and requests and others to make additional
ACMP changes, I did issue that letter on February 22
which outlines a proposed re-evaluation of the coastal
management program. It lays out the re-evaluation,
what we intend to accomplish, the steps we intend to
take, and the timelines in which to accomplish this
re-evaluation of the rules. At a minimum, the re-
evaluation will address the following three topics:
(1) the DEC carve out, (2) the coastal district
authority and ability to write enforceable policies to
address coastal uses and resources important to the
coastal district, and (3) the scope of the project
that is subject to the consistency review under the
ACMP. Also contained within the letter is the
timeline we intend to accomplish these. This re-
evaluation ... is aggressive, but here is what it
looks like. July 2008 we intend to initiate a 30-day
public comment period to solicit input on the
suggested statutory and regulatory revisions.
Following that, in August to October of this coming
year, we intend to develop a statutory package for
your review. In November and December we will be
holding workshops with the interested participants to
go over those revisions. We will initiate another
public review and comment period, finalize it in
December of this coming year. I will be back
hopefully before all of you in January 2009 to
introduce the bill and work it through ... the various
committees. We expect it to ... be done in March,
passed and signed into law, and we can embark on the
regulation revisions that will be necessary as a
result of the statutory revisions.
2:07:57 PM
CO-CHAIR JOHNSON surmised that HB 191 has not been effective and
the division cannot work within the statutes laid out in that
legislation and therefore the division must come back before the
legislature to enact new statutes.
MR. BATES responded [the division] has implemented to the best
of its ability the provisions of HB 191. As the committee will
be hearing today, and as has been heard for the past couple of
years, there are challenges and difficulties and differences of
opinion about how effective HB 191 was. The division originally
wanted to finish the program changes mandated under HB 191,
which will occur in June or July 2008, and then take a year,
implement the program, evaluate its effectiveness, and identify
tweaks that may be needed. Based on the current legislation and
the desires heard from the various districts and other
participants, [the division] upped the timeframe for that re-
evaluation. [The division] recognizes there are tweaks to the
statutes that it may recommend the legislature make to have a
better balanced and more robust coastal program that is
effective for all the participants.
2:09:30 PM
CO-CHAIR JOHNSON inquired whether any federal participation is
being jeopardized by the state's timelines.
MR. BATES replied no. The existing plan put in place under HB
191, with the subsequent revisions that were made in SB 102 and
SB 46, has full approval and remains approved. The federal
evaluation of the state program that was done this summer found
it to be preliminarily compliant. It has been [the division's]
desire to re-evaluate the program recognizing that it could
maybe do better business. [The division] just wants to have
that open forum to make this evaluation and have this
discussion. If there are no changes [the division] will come
back with no changes and an overview of where it is at. If
there are changes, which [the division] fully expects, it will
come back with justification for those.
2:10:37 PM
REPRESENTATIVE EDGMON estimated the real timeline - given the
scheduled program evaluation, getting a bill through the
legislature, writing regulations after the bill, and going to
the federal government for approval - will be 2010 or later. He
said the minutes from past committee hearings show a real sense
of disenfranchisement among the coastal communities and
boroughs. He questioned whether the timeline outlined by Mr.
Bates will be conducive to having strong local participation.
MR. BATES acknowledged the timeframe is aggressive. He said he
thinks the legislation before the committee is representative of
what many of the coastal districts might suggest as the changes
already. What [the division] wants to be able to do with this
re-evaluation is make sure that all of the participants are
heard from, which includes the division's sister agencies within
the state, the federal agencies that participate, the industry
that is affected by these changes and the coastal program, and
the interested public. It is incumbent upon his division, the
department, and the administration to run a good open forum
process to make sure that what the division does come back with
in statutory proposals is unified and has the buy-in, as much as
possible, from the parties that are involved; otherwise [the
division's] timeframe is jeopardized, as is moving the coastal
program forward in unity.
2:13:07 PM
REPRESENTATIVE GUTTENBERG stated that HB 191 did not make sense
to him at the time. He asked whether Mr. Bates remembers what
the fiscal note was for HB 191.
MR. BATES answered no, not off the top of his head.
REPRESENTATIVE GUTTENBERG noted that one of the key things HB
191 did was to take out all the councils, which were the place
where all the districts came together to move forward for
federal approval through the state. Is the federal government
now just accepting what is given to it by the state without
having the councils and districts as actively involved as they
were before, he asked.
MR. BATES answered that the structure of the coastal management
program, whether it is Alaska, Texas, or any of the other 35
coastal states, is dependent upon what the state needs. Very
few of those states have a policy council or similar governing
body overseeing their program. He said he believes there has
been a move recently by some states to move away from a council
and go back to a single agency managing the program. The
federal agency review of the state's changes in 2003, which
eliminated the Coastal Policy Council, was thorough. The agency
conducted the process for the National Environmental Policy Act
of 1969 (NEPA) and created an Environmental Impact Statement.
Thus, the state's changes were evaluated rigorously against
federal law. The federal agency's approval of the state's
coastal program, as amended, was based on the fact that the
state was still managing comprehensively all of the resources
identified as necessary for management within the coastal zone.
It is a voluntary program. [The division] puts forward what it
believes is the right program and the federal agency responds,
making sure that the program meets certain criteria in federal
law.
2:16:17 PM
REPRESENTATIVE GUTTENBERG inquired what the $890,000 under
contractual expenditures is for in DNR's 3/20/08 fiscal note.
MR. BATES responded that convening a coastal policy board,
council, or entity takes money for per diem, travel, and various
expenses. Specific to contractual, HB 243 affords the coastal
districts the opportunity to continue to revise their district
plans. Based on information from the last round of coastal plan
revisions, [the division] believes that this money would be
necessary to afford and assist the coastal districts in making
those revisions. He said he does not know if it would cover
everything that [the division] needs to do, but it would go a
distance toward affording the districts the money to make the
changes they would like.
2:18:26 PM
REPRESENTATIVE SEATON related that the federal government was
denying this plan until the governor and Mr. Bates' agency said
the coastal plan for Alaska would be entirely terminated if the
federal government did not adopt it. Therefore, he contended,
this was not approved by just a strict analysis.
MR. BATES said he does not know that at any time the federal
granting agency of the Office of Ocean and Coastal Resource
Management (OCRM) threatened denial of the program changes that
were promulgated under HB 191. There was a review process that
was rigorous, and both the state and federal sides spent a lot
of time evaluating those changes and determining whether the
changes were compliant with federal law.
2:19:38 PM
REPRESENTATIVE SEATON surmised Mr. Bates is not aware of the
statement made by [Governor Murkowski] and Jim Clark [Governor
Murkowski's Chief of Staff] that the state would pull out of the
ACMP if these changes were not approved.
MR. BATES replied he is certainly aware of the situation where
the state believed it had an approvable program as it existed
under HB 191. According to federal law, he noted, it is a
voluntary coastal program and OCRM is there to assist the state
in putting together a program that is best for the state. "We
believed at the time that the federal government was trying to
dictate from the 'Beltway' what was best for Alaska," he said.
"There was a difference of opinion about what was approvable.
We went through the process to work with OCRM, evaluate
compliance. We ultimately created matrixes for each law, how we
met it, and in the end OCRM, through no strong arming I don't
believe, came out with an objective evaluation approving the
coastal program. There were high stakes, absolutely."
2:20:57 PM
REPRESENTATIVE SEATON commented that press reports from that
time would verify exactly how that went. He expressed concern
in regard to Mr. Bates' statement about wanting to wait to come
forward with a different bill even though HB 243, which is an
open process, contains what would be proposed by the local
districts. He asked whether Mr. Bates is saying his sister
agencies have not had the ability to come testify and provide
input on HB 243.
MR. BATES acknowledged that this is an open process. He
continued:
What we want to assure in our re-evaluation is that we
take the time, we have the discussions, we have the
workshops, we have some amendments that we float back
and forth, and that we come out with a plan, statutory
revisions of basic structure that is reflective of all
participants' needs in the program. We intend to do
that through time and through an ... open discussion.
DNR Commissioner Irwin, at a press conference when
asked about our timeframe, made the statement that, We
have all the time to get it right, we don't want to
rush to get it wrong. And that is certainly our
feeling at this point ... coastal management is
critical. We want to make sure we get it right. We
want to take the time to work with the participants
and bring it back to next session with a package that
should fly through.
2:22:46 PM
REPRESENTATIVE SEATON inquired whether [the Division of Coastal
and Ocean Management] or its sister agencies have brought
forward amendments to HB 243.
MR. BATES answered the administration, the department, and the
division oppose this bill.
REPRESENTATIVE FAIRCLOUGH informed Representative Seaton that
the House Community and Regional Affairs Standing Committee had
questions, but she was outvoted as the chair and the bill moved
out before the committee could look at the considerations that
were brought up. She said she supports Representative Joule in
his effort to involve the communities, but there are big issues
that need to be handled appropriately. As far as process, the
process that she has been involved in so far has been hurried.
2:24:19 PM
CO-CHAIR GATTO asked whether the $284,000 each year [in the DNR
fiscal note] for travel includes per diem.
MR. BATES responded yes. It should include per diem, travel,
hotel, and necessary costs. In further response to Co-Chair
Gatto, he said he believes per diem is $60 per day, but is not
positive what it is for boards. He said he thinks it is
statutorily regulated.
2:25:25 PM
EDWARD ITTA, Mayor, North Slope Borough, noted he is a whaling
captain, a hunter, and a very active subsistence user, along
with his job representing the Iñupiaqs of the North Slope
Borough. He spoke from the following written testimony
[original punctuation provided]:
I appreciate this opportunity to speak with the
committee today, and I thank you for considering HB
243, which deals with what used to be one of Alaska's
most successful examples of federal, state and local
co-management - the Alaska Coastal Management Program.
The previous administration pushed for wholesale
changes in the ACMP, and while I believe their
intentions were honorable, the effect was to strip
meaningful local involvement out of the process. The
original ACMP was brilliantly conceived, in that it
brought together the interests of developers with the
concerns of local residents, resulting in development
that had local buy-in. Using the original ACMP, on
the North Slope, the overwhelming majority of projects
went through without a hitch, and they had the local
seal of approval when they went forward. It was a
recipe for stability in the development process.
This version of House Bill 243 helps to recapture
parts of the original program's success, so I want to
express our support for the bill before you today. It
would solve many of the problems we have faced under
current ACMP regulations. I recognize that it may be
tough to get all the way back to the original program,
but this bill does fix some of the most troublesome
aspects of the current law.
The Borough supports responsible resource development,
and for over 20 years the ACMP was an important way to
find a balance between development and protection of
coastal resources and uses. But as changes have been
implemented in recent years, that balance has been
lost. Almost all of our proposed enforceable policies
have been denied by the State, so we have had to rely
on our Title 29 planning and zoning process for local
input. While the permit process is an effective tool,
we miss the opportunities provided by the former
coastal management program to work cooperatively with
state and federal agencies in developing compatible
permit stipulations.
The bill before you would help restore a meaningful
ACMP. Most importantly, it would make it clear that
coastal districts may establish meaningful enforceable
policies. We believe HB 191, passed in 2003, would
have allowed us to do this, but the regulations
adopted by the last administration have eliminated
this possibility.
2:30:08 PM
MR. ITTA continued:
26 of the 31 policies we proposed for our coastal plan
revision were denied, including all important habitat
designations and some of the important subsistence use
areas, and we have been informed that the 5 remaining
policies must be changed significantly before they
will be approved.
The bill also puts air and water quality permits back
into the ACMP process. Since the Department of
Environmental Conservation permits have been removed
from the consistency review process, there has been a
lot of confusion. For example, we have been told that
we can no longer comment on the effects of a potential
oil spill on habitat or subsistence.
The Borough also supports the provision in the bill to
reestablish the Coastal Policy Council. The former
council was effective in approving coastal district
plans and establishing policy because it was composed
of both state government staff and locally elected
officials.
Finally, HB 243 makes it clear that all Outer
Continental Shelf activities affecting coastal
resources or uses would be considered in ACMP reviews.
Currently, as a result of changes to the program,
certain effects from offshore oil and gas activities
are no longer considered.
I want you to know that I have the greatest respect
for Tom Irwin and have appreciated his willingness to
work with us on a number of other issues. About
Coastal Zone Management, however, I am very encouraged
by this bill, and I hope the committee will approve
it.
2:33:15 PM
MR. ITTA, in response to Representative Roses, confirmed that 26
out of the 31 plans submitted by the borough had been denied.
REPRESENTATIVE ROSES requested an example of one of those plans
and what the contentious issue was that caused the denial.
MR. ITTA deferred to his staff to give the specifics.
BARRETT RISTROPH, Assistant Borough Attorney, Law Department,
North Slope Borough, replied the mayor spoke correctly, although
he used the word "plan" instead of "policy". No policy was
approved as a whole. They were denied and some of them were
partially approved. Subsistence is very important to the North
Slope Borough. The original guidance from DNR suggested the
borough could have a general subsistence policy and a
subsistence use designation, she related. The borough made a
policy saying when there are potentially conflicting uses,
subsistence use of plants, fish, and wildlife, including marine
mammals, shall be the highest priority use of the lands and
waters in the coastal areas. This was disapproved for being not
clear or enforceable and for conflicting with the state's
subsistence standards. This is one of the policies the borough
seeks to address through the mediation process.
2:35:39 PM
REPRESENTATIVE ROSES inquired how many of the 26 denied policies
were denied for similar reasons and had subsistence statements
in them.
MS. RISTROPH answered many of the policies were directly related
to subsistence. However, most of the policies were denied under
general statements that said the policies did not comply with
state or federal law or that they conflicted with the state's
subsistence standard. The reasons for denial were pretty
similar for each policy - they were not given a lot of
individual consideration.
2:36:19 PM
REPRESENTATIVE FAIRCLOUGH requested a list of all 31 policies
and why the department denied or approved them.
MR. ITTA agreed to do so.
2:37:09 PM
REPRESENTATIVE GUTTENBERG commented that when HB 191 was passed,
Mayor Itta's concerns were exactly the ones heard five years
ago. He asked what is in mediation, what are the conflicts, how
is that process going, and what is the borough's working
relationship with the state departments over these issues.
JOHNNY AIKEN, Director, Department of Planning and Community
Services, North Slope Borough, stated the policies that the
borough can use during a consistency review are important
because it gives the borough the ability to steer development in
a way that the people are more comfortable with the project or
development. The coastal management program was an important
and useful tool for the North Slope Borough until the last
administration revised [the state's] program. This is why the
borough has been working towards having the policies that it
wants in its program - it is a seat at the table for the
districts. He said the borough is going into mediation because
it has been unable to get the policies it wants into the
program. The rules change constantly when the borough tries to
get a policy approved. There have been six or eight meetings
with the Department of Natural Resources to work on trying to
get the borough's policies approvable. It has been three to
five years since the borough has been working on its coastal
management program, he said. So, he is very leery of going into
the re-evaluation process and the mediation process because of
what the borough has gone through thus far. He fears it will be
business as usual and things will not change.
2:41:31 PM
MS. RISTROPH added that the mediation is scheduled to take place
April 15, or at least that will be the first date for meeting
together. The main area the North Slope Borough is planning to
focus on is the disagreement with DNR as to whether the
borough's policies are consistent with the state and federal
law. She related DNR suggests that because one agency has the
authority to make regulations on a certain area, this precludes
any local district from making any regulations on that area of
policy. The borough disagrees with that. The borough is also
in disagreement about the scope of the regulations and how they
have strayed somewhat from legislative intent. Additionally,
the guidance of DNR has changed over time. Initially, DNR put
sample policies on the website, such as one allowing the borough
to have a subsistence priority. Then those were removed from
the website and the guidance has changed over the past couple of
years. She said the borough thinks that without DNR's approval
of its plan and the absence of any specific state law providing
for important habitat and subsistence use in the borough, there
is simply inadequate protection of the resources upon which the
people depend.
2:43:09 PM
REPRESENTATIVE SEATON inquired how the borough is using its
Title 29 planning and zoning functions and whether that requires
a developer to come forward for separate permitting outside of
the ACMP process.
MR. AIKEN responded the borough has its own planning and zoning
processes within the North Slope Borough where it has its own
policies. Whenever the borough issues any permits it uses this
title as its guideline in stipulating the project.
GORDON BROWER, Land Management Regulation Manager, Department of
Planning and Community Services, North Slope Borough, added that
the borough implements its Title 19. Currently, the borough has
numerous policies that were incorporated into Title 19 that came
from the original North Slope Borough Coastal Management Program
which stopped existing on September 1, 2007. But the borough
still uses those policies even though those particular policies
in the borough's old plan have gone away. He said the one thing
he worries about is the borough's ability to reach outside of
its three-mile boundary, which is one of the things resulting
from the DEC carve out. The borough does try to submit some of
the Title 19 policies on the coastal management review and
sometimes that is not very effective.
2:46:26 PM
REPRESENTATIVE SEATON asked whether the borough is able to use
its Title 29 planning and zoning functions and whether it is
forced to do that in order to incorporate those subsistence and
habitat policies. Also, he asked, does this require a separate
permitting process since they are not allowed currently under
the coastal zone management plan.
MS. RISTROPH stated that Title 29 of the Alaska statutes sets
forth the limitations on the powers of the home rule boroughs
and 29.35.180 is what allows the borough to regulate land use
and is its source of authority. Within the borough's own
municipal code, the title is Title 19 and that is what sets
forth these limits. They were a part of the old coastal
management plan and are the basis for the borough's permits. As
of right now, the borough has no coastal management plan
whatsoever, so the borough is relying on its Title 19 to send
developers through the permitting process. The borough is
relying on its Title 19 policies to put stipulations to protect
habitat and subsistence use in all of the permits. This is a
source of friction because once a developer has gone to the
trouble to get a state permit and a federal permit they have to
come back to the borough and get a local permit.
2:48:23 PM
REPRESENTATIVE EDGMON asked whether the North Slope Borough
prefers DNR's timeline or having something happen faster.
MR. ITTA replied that in all due respect to Commissioner Irwin,
he supports this approach [HB 243] over [DNR's] proposed process
mainly because at a minimum the process will be two to three
years. He shares Director Aiken's frustrations and anxieties,
and this bill would give the borough better reassurance and
better opportunity for meaningful input into doing it right.
2:50:10 PM
JOHN CHASE, Community Planner & Coastal Area Specialist,
Northwest Arctic Borough, stated that like Mayor Itta, he is a
hunter. He presented the following testimony:
The Northwest Arctic Borough supports HB 243 and we
urge you to pass this bill out of committee today.
Our proposed coastal management plan is currently in
mediation. We requested mediation because only 1 of
the 50 proposed enforceable policies we proposed was
approved by the Department of Natural Resources, and
almost all of the designated areas were disapproved.
... Without approved subsistence uses designations,
our impacts to subsistence uses cannot be [adjusted]
during an ACMP review. ... Earlier this year DNR
testified to the Senate Community and Regional Affairs
[Standing] Committee that the ACMP regulations are
more stringent than what was intended by legislation
passed in 2003. Since DNR has made no effort to
revise that non-complying regulations we believe it is
important that the legislature pass HB 243. This bill
would clarify the approval criteria for district plans
and ... would establish a Coastal Policy Board with
members from coastal districts and state agencies. We
believe these ... changes would fix the problems we
have experienced with the plan approval. Thank you
for the opportunity to testify in support of HB 243.
Again, the Northwest Arctic Borough urges you to pass
this bill out of committee today.
2:52:40 PM
REPRESENTATIVE FAIRCLOUGH requested Mr. Chase to provide the
committee with a copy of the 50 enforceable policies submitted
by the Northwest Arctic Borough. The committee will then ask
for clarification on why they were rejected.
MR. CHASE agreed to do so.
REPRESENTATIVE SEATON suggested the committee have DNR submit a
listing of all of the policies that were rejected instead of
having them sent in individually by the districts.
CO-CHAIR JOHNSON agreed with the suggestion.
MR. BATES nodded yes in this regard.
REPRESENTATIVE GUTTENBERG requested that the details also be
included as to what was and was not approved and why. He said
this illustrates what was wrong with the changes that [the
legislature] did.
2:54:59 PM
CO-CHAIR JOHNSON, in response to Representative Edgmon, stated
this is the one hearing on the bill, but he is holding it open
pending what happens in regulation review and he is not closing
public testimony.
REPRESENTATIVE SEATON asked Mr. Chase what a designated area is.
MR. CHASE answered he just started his job four weeks ago and is
unsure, but his supervisor Tom Okleasik could answer. Out of
those designated areas, only one was designated.
CO-CHAIR JOHNSON suggested the committee get that information
from DNR.
2:56:38 PM
CHRIS KRENZ, PhD, Arctic Project Manager, Oceana, stated Oceana
is an organization that is dedicated to protecting the world's
oceans. He supported HB 243. With global climate change and an
increasing world population adding pressures on natural
ecosystems, he said Oceana feels it is of critical importance
that local communities have a voice in the way that the
resources they depend on are developed. This will ensure that
those resources are developed in a sustainable way. Local
coastal communities used to have the major deciding voice in how
responsible coastal development could happen in Alaska, and that
system worked. It worked in protecting and maintaining the
health of Alaska's marine ecosystems and the opportunities for a
subsistence way of life. Two-thirds of Alaskans, representing
more than 250 communities, live on Alaska's coast. Local
communities should have the ability to protect the state's
natural resources, existing uses of coastal waters, and way of
life.
2:58:32 PM
DR. KRENZ, in response to Representative Fairclough, said he is
not positive how many members Oceana has in Alaska, but
worldwide the organization has over 300,000 members. In further
response, he guessed the number of members in Alaska to be in
the hundreds. He said he would find out exactly and get that
information to the committee. In response to further questions
from Representative Fairclough, Dr. Krenz said someone can
register online to become a Wavemaker and that is where the
300,000 [membership] figure comes from. He stated that the
organization's web site address is www.oceana.org and he has
resided in Juneau for two years.
2:59:55 PM
TERI CAMERY, Planner, Community Development Planning Division,
Community Development Department, City & Borough of Juneau
(CBJ), noted she has been part of the coastal management program
since 2000, so she is very familiar with the changes that have
taken place. The City & Borough of Juneau (CBJ) supports HB
243, she related. She said the borough believes the bill's
measures would go a long way to restoring the integrity of the
program and it would clarify the confusion regarding what types
of district policies can be allowed. The borough believes that
the bill's provisions would have eliminated the most serious
problems that Juneau has had for the last four years. The City
& Borough of Juneau went through the mediation process to defend
the policies of the Juneau Wetlands Management Plan, which was
successful. However, even after that successful mediation, the
borough's original 1999 policy plan is down to 12 policies.
MS. CAMERY testified that HB 243 addresses concerns that
districts have raised repeatedly over the years. She said the
borough believes it is important to restore the Coastal Policy
Council and it is certainly important to bring DEC back into the
review process. In Juneau, the DEC carve out has caused
significant problems and delays in the reviews, and it certainly
has not made it any easier for the developers. For Juneau the
ACMP has always played a critical role in facilitating
development, she related. A number of controversial projects
were located in sensitive habitat and the ACMP served the very
important role of bringing all of the reviewing agencies
together to work with the developer and find a compromise
solution that would allow the development to go forward and
still protect the most critical habitat in the area. She said
the Auke Bay seafood processing plant, the CBJ major docking
development next to the seafood processing plant, and all of the
city's cruise ships docks are examples where the ACMP played a
critical role.
MS. CAMERY stated that HB 243 represents a major difference
between the former administration which was quite adversarial to
a local role in the program versus the Palin Administration
which appears to be a more bottom-up approach to local
government. The Alaska Constitution calls for maximum local
governments and this bill is important to restoring that proper
balance. While DNR's efforts to launch its own re-evaluation
are appreciated, the issues that have been raised have been
brought up repeatedly by the districts since the very beginning
of [HB] 191's passage. She said she does not see the purpose of
revisiting and continued delay because these concerns are very
well documented in countless letters and it does not serve
anyone's interests, particularly the development community.
3:04:26 PM
MS. CAMERY addressed Representative Seaton's earlier question
regarding policies and local code. She said it was the decision
of the CBJ Assembly and Planning Commission to keep the policies
in local code that the state rejected in the coastal management
program. So, the borough's 99 policies remain in code. There
is sparse or no review through the coastal management program as
far as local policies adopted into that program. But the
borough's whole former program is in place in local code and
that creates a whole separate review process for the developers,
so streamlining has not been accomplished for the developers.
CO-CHAIR JOHNSON pointed out that the administration is on
record opposing HB 243.
MS. CAMERY said she misspoke.
3:05:27 PM
REPRESENTATIVE FAIRCLOUGH referenced page 8, lines 16-20, in
Version E of HB 243 and asked Ms. Camery to address testimony
that was given in the House Community and Regional Affairs
Standing Committee regarding DEC's management under current law.
MS. CAMERY said she is not qualified to pick apart the words in
the bill, but she can give an example instead that she has
brought up over and over again and that DEC is well aware of:
The City & Borough of Juneau has five impaired water bodies, and
DEC has specific authority over those impaired water bodies.
There have been a number of developments right along those
impaired water bodies and there was a case this last year where
the CBJ went through the entire coastal management program
review process and issued a consistency review in favor of that
project. Then, after that review was completed, DEC issued a
denial. She said she is not seeking to blame DEC as DEC has
done nothing wrong, it just speaks to the problems with the
process. The Department of Environmental Conservation is not an
active participant in the coastal management program reviews, so
all the other agencies were actively working out major concerns
with this development - a gravel mine in a salmon stream - and
when the process was finished DEC issued its denial. Everything
would have changed had DEC been part of the process and able to
work with the other agencies and the developer during the course
of that review.
3:08:15 PM
REPRESENTATIVE FAIRCLOUGH said she would wait and ask DEC
because someone on the record [in the House Community and
Regional Affairs Standing Committee] said that DEC already
manages those. However, she understood that Ms. Camery is
saying there is collision in how that management is happening.
MS. CAMERY nodded yes.
3:08:32 PM
REPRESENTATIVE EDGMON inquired whether the program, pre-HB 191,
would have been able to facilitate the Kensington Mine project.
MS. CAMERY replied she has never been involved in the mining
reviews in her department as those have always been elevated to
a higher level. She said she knows that under HB 191 local
districts are not allowed to write local enforceable policies
regarding mining because that was completely taken out. While
the CBJ has a section regarding mining in its local code, that
is not part of the coastal management program. In the past,
that would have been part of the coordinated review.
3:09:39 PM
REPRESENTATIVE GUTTENBERG asked whether there was any theme that
ran through the denials for the CBJ's [proposed policies].
MS. CAMERY answered that many policies were cut out because of
the DEC carve out. Anything that even indirectly addressed
water or air quality was immediately cut out, she said. That
does not make sense because local communities have a strong
interest in air and water quality. Districts could not have
policies that were addressed by state and federal law. That was
interpreted in many different ways by DNR and that is part of
the confusion that HB 243 would help clear up. Anything that
state and federal agencies had authority over was eliminated.
The district had to show that it was addressing something that
state and federal agencies did not look at at all and this was a
very tough test to meet and it was also subject to varying
interpretations.
3:11:02 PM
REPRESENTATIVE SEATON understood that previously under ACMP,
things like eel grass habitats could be designated as a policy
of concern. He inquired whether this was one of the things that
was denied under the new regime.
MS. CAMERY responded that the City & Borough of Juneau did not
specifically address any eel grass issues, although it could
have because it comes up a lot. She said Representative Seaton
is correct in that the program does not allow the designation of
any type of habitat across the board; instead, very rigorous
mapping requirements and documentation must be done for each
unit. The designated areas has been a huge issue for all the
districts and that was one of CBJ's biggest problems with
getting approval of the Wetlands Management Plan, even though
that plan has vast scientific documentation and has been in
place since 1992. In further response to Representative Seaton,
Ms. Camery explained that in order for a district to have a
habitat policy it must first have a designated area. A district
cannot have any general habitat policies. A district must lay
out the designated area with all its scientific backup as well
as thorough mapping. That designated area has to be accepted
before a district can develop a habitat policy that applies to
it and then habitat policies have their own set of requirements.
But a district cannot even look toward a habitat policy until it
has a designated area.
CO-CHAIR JOHNSON kept public testimony open.
3:14:42 PM
REPRESENTATIVE JOULE said he thinks the committee is beginning
to get an idea of the breadth of frustration that coastal
communities are feeling and their lack of being able to
participate in their futures by being able to address some of
the issues that are near and dear to them. One thing that was
proven by the prior ACMP is that people want to be part of a
process - coastal communities would like to be a part of the
process of resource development. It is necessary that agencies
be working together and not in isolation because that isolation
can actually slow things down.
REPRESENTATIVE ROSES stated he hopes the concerns that have been
expressed today will be taken into account when the regulations
are reviewed. There is no wonder at the frustration when so few
policies have been approved. He said he will be awaiting a
report on that review.
3:17:05 PM
REPRESENTATIVE SEATON noted he is the house vice chair for
regulation review. He said the bill should be kept hot because
the courts have ruled that the only way regulations can be
overturned is through a bill. He expressed his opinion that the
individual agency and the sister agencies should be coming
forward with amendments to HB 243 and justifications for those
amendments instead of saying not to do anything and requesting
more time. There has been ample frustration. The way to come
out with the best possible bill is to have the administration
identify the specific areas of concern and provide specific
amendment language.
CO-CHAIR JOHNSON added he hopes that no one misinterprets the
committee not hearing the bill as not keeping the bill hot as it
is something that does need to be addressed. He said he is very
pro-development, but he believes that communities need to have a
say. He encouraged the department to work on regulations before
the 2010 presentation that might soften some of this and might
result in a better piece of legislation when it is brought
before the House Resources Standing Committee in the future. He
said there are a couple of years to write regulations under the
law and there is some softening that can be done there as well.
[HB 243 was held over.]
ADJOURNMENT
There being no further business before the committee, the House
Resources Standing Committee meeting was adjourned at 3:19 p.m.
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