Legislature(2003 - 2004)

04/28/2003 02:05 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE RESOURCES STANDING COMMITTEE                                                                             
                         April 28, 2003                                                                                         
                           2:05 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Hugh Fate, Chair                                                                                                 
Representative Beverly Masek, Vice Chair                                                                                        
Representative Carl Gatto                                                                                                       
Representative Cheryll Heinze                                                                                                   
Representative Bob Lynn                                                                                                         
Representative Carl Morgan                                                                                                      
Representative Kelly Wolf                                                                                                       
Representative David Guttenberg                                                                                                 
Representative Beth Kerttula                                                                                                    
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
HOUSE BILL NO. 191                                                                                                              
"An Act relating to the  Alaska coastal management program and to                                                               
policies  and   procedures  for   consistency  reviews   and  the                                                               
rendering  of  consistency  determinations  under  that  program;                                                               
relating  to the  functions of  coastal  resource service  areas;                                                               
creating   an   Alaska   Coastal  Program   Evaluation   Council;                                                               
eliminating the Alaska Coastal  Policy Council; annulling certain                                                               
regulations relating  to the  Alaska coastal  management program;                                                               
relating  to  actions  based on  private  nuisance;  relating  to                                                               
zoning  within  a  third  class borough  covered  by  the  Alaska                                                               
coastal management program; and providing for effective dates."                                                                 
                                                                                                                                
     - MOVED CSHB 191(RES) OUT OF COMMITTEE                                                                                     
                                                                                                                                
HOUSE BILL NO. 208                                                                                                              
"An  Act  relating to  hunting  on  the  same day  airborne;  and                                                               
providing for an effective date."                                                                                               
                                                                                                                                
     - SCHEDULED BUT NOT HEARD                                                                                                  
                                                                                                                                
HOUSE BILL NO. 78                                                                                                               
"An  Act  relating  to  adoption  and use  of  a  unified  permit                                                               
application form by the natural  resource agencies; and repealing                                                               
the Environmental Procedures Coordination Act."                                                                                 
                                                                                                                                
     - 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                                                                                 
03/17/03                (H)        MINUTE(FSH)                                                                                  
03/18/03                (H)        RES AT 12:30 PM CAPITOL 124                                                                  
03/18/03                (H)        <Pending Referral> -- Meeting                                                                
                                   Canceled --                                                                                  
03/26/03     0638       (H)        FSH RPT 2DP 2DNP 1NR 2AM                                                                     
03/26/03     0638       (H)        DP: HEINZE, WILSON; DNP:                                                                     
                                   GUTTENBERG,                                                                                  
03/26/03     0638       (H)        BERKOWITZ; NR: SAMUELS; AM:                                                                  
                                   OGG,                                                                                         
03/26/03     0638       (H)        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                (H)        FSH AT 8:30 AM CAPITOL 124                                                                   
03/26/03                (H)        RES AT 1:00 PM CAPITOL 124                                                                   
03/26/03                (H)        -- Meeting Canceled --                                                                       
03/26/03                (H)        MINUTE(FSH)                                                                                  
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                                                                   
04/16/03                (H)        Heard & Held                                                                                 
04/16/03                (H)        MINUTE(RES)                                                                                  
04/23/03                (H)        RES AT 1:00 PM CAPITOL 124                                                                   
04/23/03                (H)        Heard & Held                                                                                 
04/23/03                (H)        MINUTE(RES)                                                                                  
04/25/03                (H)        RES AT 1:00 PM CAPITOL 124                                                                   
04/25/03                (H)        -- Meeting Postponed to Mon.                                                                 
                                   April 28 --                                                                                  
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
DOUGLAS MERTZ                                                                                                                   
Prince William Sound Regional Citizens' Advisory Council                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:   Expressed  concern that  proposed CSHB 191,                                                               
Version 4/22/2003,  jeopardizes locally enforceable  policies, in                                                               
particular.                                                                                                                     
                                                                                                                                
MARTY RUTHERFORD, Consultant                                                                                                    
to the Administration                                                                                                           
and to the Department of Natural Resources (DNR)                                                                                
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Answered questions  about proposed CSHB 191,                                                               
Version 4/22/2003; explained Amendment 1.                                                                                       
                                                                                                                                
PATRICK GALVIN, Petroleum Land Manager                                                                                          
Division of Oil and Gas                                                                                                         
Department of Natural Resources                                                                                                 
Anchorage, Alaska                                                                                                               
POSITION   STATEMENT:  Assisted   Ms.  Rutherford   in  answering                                                               
questions relating to proposed CSHB 191, Version 4/22/2003.                                                                     
                                                                                                                                
BRECK TOSTEVIN, Assistant Attorney General                                                                                      
Environmental Section                                                                                                           
Civil Division (Anchorage)                                                                                                      
Department of Law                                                                                                               
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:   Answered questions  on proposed  CSHB 191,                                                               
Version 4/22/2003; explained Amendment 1.                                                                                       
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 03-35, SIDE A                                                                                                            
Number 0001                                                                                                                     
                                                                                                                                
CHAIR  HUGH FATE  called the  House Resources  Standing Committee                                                             
meeting  to order  at  2:05 p.m.    Representatives Fate,  Masek,                                                               
Heinze, Lynn,  Morgan, Guttenberg,  and Kerttula were  present at                                                               
the call  to order.   Representatives Wolf  and Gatto  arrived as                                                               
the meeting was in progress.                                                                                                    
                                                                                                                                
HB 191-COASTAL MANAGEMENT PROGRAMS                                                                                            
                                                                                                                                
[Contains discussion of SB 143, the companion bill]                                                                             
                                                                                                                                
CHAIR FATE  announced that  the committee  would hear  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."                                                               
[HB 191  was sponsored by  the House Rules Standing  Committee by                                                               
request of the governor.]                                                                                                       
                                                                                                                                
Number 0085                                                                                                                     
                                                                                                                                
CHAIR FATE announced  that before the committee  was the proposed                                                               
committee  substitute (CS)  labeled 03-0069  bil2.doc, 4/22/2003,                                                               
1:30 pm [which had been discussed at the previous hearing].                                                                     
                                                                                                                                
CHAIR  FATE  informed the  committee  that  although he'd  closed                                                               
public testimony, the committee would  hear from Mr. Mertz, who'd                                                               
waited  to testify  previously.   In addition,  an amendment  had                                                               
been requested by the City &  Borough of Juneau (CBJ) and another                                                               
had been prepared by the administration.                                                                                        
                                                                                                                                
Number 0278                                                                                                                     
                                                                                                                                
DOUGLAS MERTZ,  Prince William Sound Regional  Citizens' Advisory                                                               
Council, told members:                                                                                                          
                                                                                                                                
     The only  real point that  I wanted  to make to  you is                                                                    
     that  we  have  tracked  the  changes  in  the  various                                                                    
     versions of the  CS as they've been  developed over the                                                                    
     last  week  or week  and  a  half, and  compared  their                                                                    
     provisions  with the  actual  provisions  of the  local                                                                    
     enforceable standards, which are  available on line, to                                                                    
     see  whether  the  optimistic view  of  them  that  the                                                                    
     administration   ...  testifiers   are  giving   us  is                                                                    
     justified.                                                                                                                 
                                                                                                                                
     And, in  fact, what  we have  concluded is  that almost                                                                    
     all of  the current locally enforceable  policies would                                                                    
     be in jeopardy.   And the ones that  are most important                                                                    
     to the local people -  the ones that affect subsistence                                                                    
     resources, commercial fishery  resources, other aspects                                                                    
     of habitat  preservation - would almost  certainly fall                                                                    
     if this language were enacted as it is.                                                                                    
                                                                                                                                
     Now,  we  appreciate what  they  are  telling us  about                                                                    
     their intentions  as drafters, but if  it doesn't match                                                                    
     the language of the bill, it  doesn't work.  So what we                                                                    
     are  suggesting  is that  the  committee  make its  own                                                                    
     decision  on  the policy  question.    Do you  want  to                                                                    
     continue the  present system  of letting  local coastal                                                                    
     districts  have local  enforceable  policies?   Do  you                                                                    
     want to  let it  continue with maybe  some tweaks?   Do                                                                    
     you want to basically do away with that power at all?                                                                      
                                                                                                                                
     If  it's the  last, the  present bill  might work.   If                                                                    
     it's one  of the first  two -  if you want  to continue                                                                    
     some of  that authority -  you really need to  tell the                                                                    
     drafters  that  that  is  your  decision  and  have  it                                                                    
     redrafted, probably by  [Legislation Legal and Research                                                                    
     Services],  which can  clearly and  unequivocally match                                                                    
     ... the words in the bill with that intention.                                                                             
                                                                                                                                
Number 0451                                                                                                                     
                                                                                                                                
REPRESENTATIVE   KERTTULA   requested    examples   of   specific                                                               
enforceable  policies  that  districts are  concerned  they  will                                                               
lose.                                                                                                                           
                                                                                                                                
MR.  MERTZ answered  that almost  all have  language -  sometimes                                                               
specific, sometimes  general - about preserving  critical habitat                                                               
areas, which  typically has to  do with fish-rearing  habitat for                                                               
subsistence and commercial uses.   Because they'd come within the                                                               
prohibition  on  duplicating  the  permitting  authority  of  the                                                               
Department  of Environmental  Conservation (DEC),  those probably                                                               
would  fall.   He suggested  that is  probably the  most critical                                                               
area of all.                                                                                                                    
                                                                                                                                
Number 0523                                                                                                                     
                                                                                                                                
MR.   MERTZ,  in   reply  to   a  question   from  Representative                                                               
Guttenberg, explained that  under the bill DEC  and DNR basically                                                               
would  continue the  functions they've  had all  along, including                                                               
those  under  the  ACMP   [Alaska  Coastal  Management  Program],                                                               
statewide  and nationwide  considerations  within their  purview,                                                               
and anything else  they'd be doing anyway such  as DEC wastewater                                                               
discharge permitting.   However, they  wouldn't pick up  the lost                                                               
local enforceable policies; those would drop out.                                                                               
                                                                                                                                
Number 0599                                                                                                                     
                                                                                                                                
REPRESENTATIVE   GUTTENBERG   mentioned  the   regional   coastal                                                               
management  groups and  the proposed  elimination  of the  Alaska                                                               
Coastal Policy Council  (ACPC).  He asked whether  Mr. Mertz sees                                                               
those  as vital  to local  input and  inquired, "How  do you  see                                                               
being able to interact with them?"                                                                                              
                                                                                                                                
MR. MERTZ answered:                                                                                                             
                                                                                                                                
     I am  aware that  many of  the local  coastal districts                                                                    
     believe that  the continued existence of  the [ACPC] is                                                                    
     vital, although I  will have to tell you, to  me, it is                                                                    
     not as  vital as continuation of  the local enforceable                                                                    
     policies.    It  gives   everybody  some  unease  that,                                                                    
     essentially, DNR,  in most instances, would  become the                                                                    
     final  arbiter, and  they wouldn't  have the  statewide                                                                    
     coastal policy  council as,  in a  sense, the  voice of                                                                    
     coastal districts ... and interests in general.                                                                            
                                                                                                                                
Number 0686                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA said as she  reads it, DEC is "completely                                                               
broken out,"  that there is no  need for or envisioning  of DEC's                                                               
participation  in  coastal management  anymore.    She asked  Mr.                                                               
Mertz whether he reads it that way as well.                                                                                     
                                                                                                                                
MR. MERTZ answered in the affirmative.                                                                                          
                                                                                                                                
REPRESENTATIVE  KERTTULA asked  what Mr.  Mertz thinks  this will                                                               
mean for  communities with  activities or  permits at  stake that                                                               
are "DEC-oriented,"  as well as  other portions of  projects that                                                               
will  be part  of  coastal  management.   She  asked whether  the                                                               
result will be two disparate permitting paths.                                                                                  
                                                                                                                                
MR. MERTZ replied:                                                                                                              
                                                                                                                                
     There  will be  the  traditional  DEC permitting  path.                                                                    
     And then the  question is, what happens on  ... a local                                                                    
     level.  In  the local areas that ...  have planning and                                                                    
     zoning powers - home  rule boroughs, first class cities                                                                    
     - then  there would be  one based on those  powers, but                                                                    
     it would  be different from DEC  because it's different                                                                    
     permitting  authority.    And anything  that  the  CSRA                                                                    
     [Coastal  Resource  Service  Area], the  local  coastal                                                                    
     district, could do would be  extremely limited.  And in                                                                    
     terms of the DEC process,  they basically would be able                                                                    
     to comment  like any of  the rest of  us - but  no more                                                                    
     weight than any of the rest of us.                                                                                         
                                                                                                                                
REPRESENTATIVE  KERTTULA asked  whether the  problem is  that now                                                               
the permitting  process is  starting to  be broken  apart; rather                                                               
than  streamlining,  now  there  will be  not  only  DEC  coastal                                                               
management, but  also "the ever-confusing ...  Title 29 municipal                                                               
authorities, which are so varied  across the state, and which are                                                               
very difficult to mesh with any kind of permitting."                                                                            
                                                                                                                                
Number 0835                                                                                                                     
                                                                                                                                
MR. MERTZ replied:                                                                                                              
                                                                                                                                
     It is  worth bearing in  mind that one of  the original                                                                    
     purposes  of   this  program,  this  statute,   was  to                                                                    
     coordinate,  to  streamline,  to make  it  simpler  for                                                                    
     everybody involved.   And ...  in attempting  to remove                                                                    
     some of ...  the features of the  program that increase                                                                    
     costs, increase  delay, we may  be tossing out  some of                                                                    
     the  streamlining at  the same  time and  bringing back                                                                    
     some  of  the  confusion and  multi-channel  permitting                                                                    
     that existed before the ACMP.                                                                                              
                                                                                                                                
Number 0883                                                                                                                     
                                                                                                                                
CHAIR FATE  explained to Marty  Rutherford that there had  been a                                                               
real  concern,  because  the  local  policy  councils  have  been                                                               
deleted [in the legislation], that  local districts would have no                                                               
enforceability  and  would  lose  the ability  to  make  changes,                                                               
especially  in areas  of  environmental concern.    He asked  Ms.                                                               
Rutherford whether  she had dealt  with this, and  requested that                                                               
she respond to the concern.                                                                                                     
                                                                                                                                
Number 0962                                                                                                                     
                                                                                                                                
MARTY  RUTHERFORD, Consultant  to the  Administration and  to the                                                               
Department of  Natural Resources (DNR), responded  that districts                                                               
will  be   able  to  have   local  enforceable   policies  except                                                               
pertaining to  activities subject to  DEC's air, land,  and water                                                               
quality standards.   Noting that nine examples  had been prepared                                                               
at the  committee's request, she  referred to a  document titled,                                                               
"Examples  of   District  Enforceable  Policies  that   meet  the                                                               
requirements   of  CS   FOR  HB   191/SB   143  (RESOURCES),   AS                                                               
46.40.070(aa)(2)(A)-(B)(section 14)."                                                                                           
                                                                                                                                
MS.   RUTHERFORD  also   acknowledged   a   concern  that   local                                                               
municipalities won't be able to  continue to implement ordinances                                                               
that  deal   with  air,  land,   and  water   quality  standards.                                                               
Referring to page  19, Section 38, paragraph (3)  of the proposed                                                               
CS,  she   said  municipalities  won't  be   negatively  affected                                                               
whatsoever, since it  says that nothing in this  chapter shall be                                                               
construed to  "(3) diminish the  zoning or planning  authority of                                                               
municipalities under AS  29."  She offered her  belief that local                                                               
enforceable policies are protected "in  most areas except for the                                                               
air, land, and water quality  standards," but that "separate from                                                               
this   bill,   local   municipalities  -   Title   29   entities,                                                               
corporations -  will be able  to maintain their  local ordinances                                                               
dealing with air, land, and water quality."                                                                                     
                                                                                                                                
Number 1098                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA  suggested that  in Section  14, however,                                                               
it isn't just  DEC standards that the  local enforceable policies                                                               
run up against.   Rather, it is anything that  addresses a matter                                                               
regulated  or authorized  by  state or  federal  law unless  [the                                                               
enforceable  policies relate  specifically to  a matter  of local                                                               
concern]; she noted  that it is narrowed to a  local concern with                                                               
a specific coastal use or resource  in the defined portion of the                                                               
district's  coastal  zone.     She  requested  confirmation  that                                                               
potentially it's much broader than DEC.                                                                                         
                                                                                                                                
MS. RUTHERFORD replied:                                                                                                         
                                                                                                                                
     There  is a  test  imbedded  in Section  14.   You  are                                                                    
     correct. ... Let me be  very clear here. ... Activities                                                                    
     subject to  air, land, and water  quality standards ...                                                                    
     are  completely  excluded  from ...  local  enforceable                                                                    
     policies.   However, for  anything else,  whether there                                                                    
     is state or federal law dealing  with it - if, in fact,                                                                    
     you're   going   to   promulgate   or   develop   local                                                                    
     enforceable  policies  that  address  issues  that  are                                                                    
     dealt with in state or  federal law - then there's this                                                                    
     test that you must go to.                                                                                                  
                                                                                                                                
Number 1194                                                                                                                     
                                                                                                                                
MS.  RUTHERFORD  referred  to   the  document  setting  out  nine                                                               
examples and said:                                                                                                              
                                                                                                                                
     These all were pulled from  district policies.  I might                                                                    
     note that  there were situations  where we  refined the                                                                    
     language of  existing enforceable policies to  meet the                                                                    
     test  in  Section  14.  ... And  I  think  it's  really                                                                    
     important  to  note  that   they  are  both  addressing                                                                    
     specific  locations  within  particular  districts  and                                                                    
     generally defined  portions ...  of a  district coastal                                                                    
     zone.  So they are broad. ...                                                                                              
                                                                                                                                
     As you  can see, it allows  for quite a lot  of breadth                                                                    
     in local  enforceable policies,  even under  this bill.                                                                    
     These  were created  by the  team that  I have  with me                                                                    
     here today,  and have  had at  previous meetings.   And                                                                    
     ... after we  went through and developed  these that we                                                                    
     thought, ...  in a  fashion, that  met the  test within                                                                    
     Section 14, we  did clear them ...  with the Department                                                                    
     of  Law and  with  the  chief of  staff,  where we  got                                                                    
     approval.    So these  are  a  reflection of  what  the                                                                    
     administration feels.  They're  very broad.  They allow                                                                    
     a great  deal of  flexibility within  local enforceable                                                                    
     policies.  They  just simply require that  they be more                                                                    
     concise.  ...  You  make the  argument  that  they  are                                                                    
     addressing areas  that are  sensitive to  development -                                                                    
     all the other elements in the test.                                                                                        
                                                                                                                                
Number 1294                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA asked where the changes had been made to                                                                
the policies to make them meet this test, and what kind of                                                                      
changes those were.                                                                                                             
                                                                                                                                
MS. RUTHERFORD referred to the third example under "Specific                                                                    
Location Policies" in the document that sets out nine examples.                                                                 
It read [original punctuation provided]:                                                                                        
                                                                                                                                
     3.  Floathomes  shall be recognized as  an approved use                                                                    
     of  private  and  state tidelands  in  all  residential                                                                    
     zones identified on Map 3-B where:                                                                                         
          1) Adequate sewage treatment (marine sanitation                                                                       
     devices) and/or tidal flushing exists;                                                                                     
          2) The floathome is moored in at least 15 feet of                                                                     
     water at mean low water;                                                                                                   
          3) The presence of a floathome will not                                                                               
     jeopardize access to another's upland property; and                                                                        
          4) the floathome is not an obstruction to use of                                                                      
     navigable waters.                                                                                                          
                                                                                                                                
MS.  RUTHERFORD,  recalling that  the  foregoing  is a  Ketchikan                                                               
district  policy  and  noting  that  changes  would  be  to  make                                                               
something  more  specific,  if  appropriate,  explained  in  this                                                               
instance   that  the   enforceable   policy  already   references                                                               
residential zones.   "The  only thing  that we  noted is  that it                                                               
would be  linked to a  mapped location,  say, of ...  where those                                                               
residential  zones  would  be,"  she said.    "Other  than  that,                                                               
nothing was changed in that particular policy."                                                                                 
                                                                                                                                
Number 1373                                                                                                                     
                                                                                                                                
REPRESENTATIVE  KERTTULA brought  attention to  the reference  to                                                               
sewage  treatment  and marine  sanitation  devices  in the  third                                                               
example just  discussed.   She said  DEC clearly  regulates those                                                               
and asked, "Does  the district have the authority now  to be able                                                               
to do this when you've broken DEC out?"                                                                                         
                                                                                                                                
MS. RUTHERFORD  replied that  it just  notes that  [the district]                                                               
will  allow, under  its enforceable  policies,  float homes  with                                                               
adequate  sewage treatment,  whether  approved by  DEC or  simply                                                               
tidal flushing.   She added, "It  just makes reference to  it; it                                                               
doesn't  mean  that they're  going  to  second-guess the  quality                                                               
standards that are imposed by DEC."                                                                                             
                                                                                                                                
REPRESENTATIVE KERTTULA  asked whether  ultimately DEC  makes all                                                               
those decisions.                                                                                                                
                                                                                                                                
MS. RUTHERFORD  said she wasn't  sure DEC required  certain types                                                               
of  sewage treatment  on  float homes.    She added,  "Obviously,                                                               
there are  situations where there  are none required.   They just                                                               
have to assure  that there is enough tidal action  to make ... it                                                               
safe."  She went on to say  that if there were a sewage treatment                                                               
facility  regulated  by  DEC  required, then  DEC  would  make  a                                                               
determination itself as to whether that meets its standard.                                                                     
                                                                                                                                
Number 1470                                                                                                                     
                                                                                                                                
REPRESENTATIVE MASEK suggested  that Section 14 of  the bill says                                                               
the  plan  must  meet  DNR regulations  and  not  address  issues                                                               
already  regulated by  the state  unless it  is a  specific local                                                               
concern.  She asked whether that is the proper reading.                                                                         
                                                                                                                                
MS. RUTHERFORD answered that she believed so.                                                                                   
                                                                                                                                
Number 1587                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA referred to  the "DEC breakout" and asked                                                               
what the interaction will be.   For example, if a project has DEC                                                               
permits  and  other   permits  at  stake,  won't   there  be  two                                                               
permitting  processes going  on?   Or is  it envisioned  that the                                                               
consistency determination will bring in  DEC so that everybody is                                                               
at the table?                                                                                                                   
                                                                                                                                
MS. RUTHERFORD  requested that Patrick  Galvin, past  director of                                                               
[the  Division of  Governmental Coordination  (DGC)] join  her at                                                               
the table.  She then said:                                                                                                      
                                                                                                                                
     The answer is  that there will be  a consistency review                                                                    
     where   DEC  will   be  brought   to  the   table,  ...                                                                    
     particularly  if  there  are  other  local  enforceable                                                                    
     policies  pertinent to  that project  that are  outside                                                                    
     the parameters  of activities  regulated by  DEC's air,                                                                    
     land, and water quality standards.                                                                                         
                                                                                                                                
Number 1639                                                                                                                     
                                                                                                                                
PATRICK GALVIN, Petroleum Land Manager, Division of Oil and Gas                                                                 
Department of Natural Resources, explained:                                                                                     
                                                                                                                                
     What you have to recognize  is, right now, when we talk                                                                    
     about  a consistency  review,  we talk  about  it as  a                                                                    
     coordinated  review.   And  in  theory,  at least,  the                                                                    
     permit issues that each of  the departments has to make                                                                    
     will  be  made   simultaneously  with  the  consistency                                                                    
     determination.   However, that's  not the way  it works                                                                    
     in practice on a project-by-project basis. ...                                                                             
                                                                                                                                
     The  distinction  is  that  ...  today  when  we  do  a                                                                    
     consistency  review,  DEC  has   to  fully  decide  its                                                                    
     permitting    decisions    before    the    consistency                                                                    
     determination  can be  issued.   Under the  bill, while                                                                    
     the  permitting will  still be  coordinated as  best it                                                                    
     can  be  through  the  consistency  review,  and  DEC's                                                                    
     permits   will   be   brought   in,   the   consistency                                                                    
     determination  could proceed  along its  own timeframe.                                                                    
     And  ... if  DEC's permit  has an  issue that  comes up                                                                    
     that's specific  to the DEC issue  that doesn't pertain                                                                    
     to   other   coastal-management    issues,   then   the                                                                    
     consistency  determination  can  proceed  and  conclude                                                                    
     without  having  to wait  until  those  DEC issues  are                                                                    
     resolved. ...                                                                                                              
                                                                                                                                
     The reason why the  DEC provisions are still considered                                                                    
     enforceable policies of the program  - rather than just                                                                    
     saying, OK, why  don't we eliminate the  DEC problem by                                                                    
     not  having the  DEC standards  apply -  is because  we                                                                    
     want  to  have  the  DEC provisions  apply  to  federal                                                                    
     projects, OCS  [outer continental shelf] projects.   We                                                                    
     don't  want  to lose  that  application.   Even  though                                                                    
     DEC's permits  are still required within  the state and                                                                    
     there's  no  real  value  added  having  them  in  that                                                                    
     process, we want to make  sure that those standards ...                                                                    
     still apply to offshore.                                                                                                   
                                                                                                                                
Number 1755                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA began discussion  of Amendment 1.  Noting                                                               
that  there  had been  an  amendment  to [SB 143,  the  companion                                                               
bill], she asked  whether there was a plan to  offer the same one                                                               
here, and whether  the intention was to try to  bring [DEC] "back                                                               
on" to  those projects.   Amendment 1 read  [original punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
     Page 8, line 10:                                                                                                           
          Delete "a new subsection"                                                                                             
          Insert "new subsections"                                                                                              
                                                                                                                                
     Page 8, line 13 following "purposes." through line 22:                                                                     
          Delete all material and insert:                                                                                       
                                                                                                                                
     "For those purposes only,                                                                                                  
          (1)  the issuance of permits, certifications,                                                                         
     approvals,  and  authorizations  by the  Department  of                                                                    
     Environmental   Conservation  establishes   consistency                                                                    
     with   the  Alaska   coastal  management   program  for                                                                    
     those  activities  of  a proposed  project  subject  to                                                                    
     those    permits,   certifications,    approvals,   and                                                                    
     authorizations;                                                                                                            
          (2)  for a consistency review of an activity that                                                                     
     does   not  require   a  Department   of  Environmental                                                                    
     Conservation   permit,   certification,  approval,   or                                                                    
     authorization  because   the  activity  is   a  federal                                                                    
     activity or  the activity is  located on  federal lands                                                                    
     or  the federal  outer  continental shelf,  consistency                                                                    
     with AS  46.03, AS  46.04, AS 46.09,  and AS  46.14 and                                                                    
     the regulations  adopted under those statutes  shall be                                                                    
     established on  the basis of whether  the Department of                                                                    
     Environmental  Conservation  finds  that  the  activity                                                                    
     satisfies  the  requirements   of  those  statutes  and                                                                    
     regulations.                                                                                                               
          (c)  For a consistency review described in (b)(2)                                                                     
     of this  section, the department,  in  addition  to its                                                                    
     review  under AS  46.40.096  of  all other  enforceable                                                                    
     policies  applicable to  the project,  shall coordinate                                                                    
     with the  Department of Environmental  Conservation and                                                                    
     issue  the Department  of Environmental  Conservation's                                                                    
     finding   of  whether   the   activity  satisfies   the                                                                    
     requirements of the  statutes and regulations described                                                                    
     in (b)(2) of this section."                                                                                                
                                                                                                                                
[End of Amendment 1]                                                                                                            
                                                                                                                                
Number 1769                                                                                                                     
                                                                                                                                
MS.  RUTHERFORD reported  that there  had been  comments received                                                               
from  several  coastal  districts  about the  third  sentence  of                                                               
Section  11;  the  concern  was that  Section  11  prevented  any                                                               
district  enforceable policies  on the  outer continental  shelf.                                                               
She explained:                                                                                                                  
                                                                                                                                
     That was  not the intent, nor  do we feel that  was the                                                                    
     effect of  Section 11.   However,  in order  to clarify                                                                    
     that the districts can  have local enforceable policies                                                                    
     that  are applicable  to federal  activities, federally                                                                    
     permitted  activities,  and  activities  in  the  outer                                                                    
     continental shelf, we prepared  that amendment.  And it                                                                    
     basically says the DEC standards  are not the exclusive                                                                    
     standards   that  would   apply  to   those  types   of                                                                    
     consistency reviews.                                                                                                       
                                                                                                                                
Number 1834                                                                                                                     
                                                                                                                                
CHAIR  FATE reminded  members that  public  testimony was  closed                                                               
except  for answering  questions.   He also  noted that  a second                                                               
amendment had been suggested by the CBJ.                                                                                        
                                                                                                                                
Number 1867                                                                                                                     
                                                                                                                                
REPRESENTATIVE HEINZE  moved to adopt Amendment  1 [text provided                                                               
previously].                                                                                                                    
                                                                                                                                
The committee took an at-ease from 2:33 p.m. to 2:34 p.m.                                                                       
                                                                                                                                
Number 1902                                                                                                                     
                                                                                                                                
REPRESENTATIVE  KERTTULA called  attention to  [Section 46],  the                                                               
transition section, and  asked what happens in the  interim.  She                                                               
acknowledged testimony that the programs  will stay the same, but                                                               
noted that  page 22, lines 15-16,  says it's only "to  the extent                                                               
the  regulations  are  not  inconsistent with  this  Act".    She                                                               
expressed  concern that  it is  circular, since  it says  it only                                                               
stays in  effect to  the extent it's  not inconsistent,  but that                                                               
the inconsistencies would  be huge because of  the "DEC breakout,                                                               
if nothing else."   She asked, "Do we have  to be consistent with                                                               
the  Act to  have  a  district enforceable  policy  to remain  in                                                               
effect during transition?"                                                                                                      
                                                                                                                                
MR. GALVIN answered  no.  He offered his  understanding that this                                                               
is  standard  drafting  language   from  [Legislative  Legal  and                                                               
Research   Services]  to   provide   for   the  continuation   of                                                               
regulations  when  there  has  been a  statutory  change  in  the                                                               
overarching program.   He added,  "It's to the  extent consistent                                                               
also with  the transitional  parts of  this statute,  which leave                                                               
the district policies  in place.  And they will  remain a part of                                                               
the  program until  either they  are amended  by DNR  through the                                                               
amendment process or they sunset."                                                                                              
                                                                                                                                
Number 1984                                                                                                                     
                                                                                                                                
REPRESENTATIVE  KERTTULA asked,  when it  says "not  inconsistent                                                               
with this Act," whether it is  referring back to the original Act                                                               
or program.                                                                                                                     
                                                                                                                                
MS. RUTHERFORD deferred to Mr. Tostevin.                                                                                        
                                                                                                                                
Number 2013                                                                                                                     
                                                                                                                                
BRECK   TOSTEVIN,  Assistant   Attorney  General,   Environmental                                                               
Section,   Civil  Division   (Anchorage),   Department  of   Law,                                                               
indicated there are two occurrences  of "not inconsistent with" -                                                               
one with the Act, and the other with the program, AS 46.40.                                                                     
                                                                                                                                
REPRESENTATIVE  KERTTULA  said  the  problem begins  on  line  12                                                               
[page 22, subsection (b)], where it  talks about "sec. 45 of this                                                               
Act".  She suggested it might  be a technical matter and that the                                                               
committee can be sure that  the language is drafted appropriately                                                               
to keep the  program in effect until transitioned out.   She said                                                               
that seems to be everyone's intent.                                                                                             
                                                                                                                                
MS. RUTHERFORD added:                                                                                                           
                                                                                                                                
     We'd    heard   Representative    Kerttula's   concerns                                                                    
     previously.  We absolutely want  to keep the program in                                                                    
     effect, as pertinent  to the sections of  the bill that                                                                    
     talk about  the timing  for the  transition.   That was                                                                    
     our  intention.   Mr. Tostevin  went back,  worked with                                                                    
     the regulatory attorneys to assure  that, in fact, this                                                                    
     was as  good as  we could make  this language,  to give                                                                    
     you that  comfort.   But I can  assure you,  that's how                                                                    
     the department will be implementing it.                                                                                    
                                                                                                                                
Number 2088                                                                                                                     
                                                                                                                                
CHAIR FATE returned attention to Amendment 1.                                                                                   
                                                                                                                                
REPRESENTATIVE  KERTTULA   objected  in   order  to   request  an                                                               
explanation.                                                                                                                    
                                                                                                                                
Number 2133                                                                                                                     
                                                                                                                                
MR. TOSTEVIN  noted that  Section 11, page  8, beginning  on line                                                               
11,  reads, "AS  46.03, AS  46.04, AS  46.09, AS  46.14, and  the                                                               
regulations   adopted  under   those   statutes  constitute   the                                                               
exclusive enforceable  policies of the Alaska  coastal management                                                               
program  for  those purposes."    He  informed members  that  the                                                               
foregoing are  referred to as  "the air, land, and  water quality                                                               
standards."  He  explained that Amendment 1 [deletes  the rest of                                                               
Section 11 and]  inserts language that says,  "For those purposes                                                               
only", which refers back to those statutes and regulations.                                                                     
                                                                                                                                
MR.  TOSTEVIN  explained that  there  are  two provisions.    One                                                               
relates to  issuing permits and  so forth.  The  second addresses                                                               
situations  involving federal  activities, activities  on federal                                                               
lands, or activities on the  outer continental shelf; consistency                                                               
is based  on whether  DEC finds that  the activity  satisfies the                                                               
requirements  of  those  statutes   and  regulations,  since  DEC                                                               
doesn't issue a  permit for those.  Noting that  the reference in                                                               
subsection (c) to the department refers  to DNR, he said the idea                                                               
behind  that subsection  is to  clarify that  a project  can have                                                               
other activities beyond those regulated by DEC.                                                                                 
                                                                                                                                
MS.  RUTHERFORD  added  that  a   district  could  develop  local                                                               
enforceable  policies specific  to the  outer continental  shelf,                                                               
for example.                                                                                                                    
                                                                                                                                
CHAIR  FATE  said it  had  seemed  to  be  a big  concern  voiced                                                               
consistently throughout these hearings.                                                                                         
                                                                                                                                
MS. RUTHERFORD replied, "It is, and we want to protect that."                                                                   
                                                                                                                                
Number 2280                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA withdrew her objection.                                                                                 
                                                                                                                                
CHAIR  FATE,   hearing  no  further  objection,   announced  that                                                               
Amendment 1 was adopted.                                                                                                        
                                                                                                                                
The committee took a brief at-ease at 2:40 p.m.                                                                                 
                                                                                                                                
Number 2318                                                                                                                     
                                                                                                                                
REPRESENTATIVE HEINZE moved to adopt  [Conceptual] Amendment 2, a                                                               
handwritten amendment that read [original punctuation provided]:                                                                
                                                                                                                                
     New (4) -                                                                                                                
                                                                                                                                
       If the applicant fails to respond in writing to a                                                                        
      written request for additional information within 14                                                                      
     days of receipt of such request;                                                                                           
                                                                                                                                
Number 2319                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA  objected for  discussion purposes.   She                                                               
requested an explanation and asked what pages it applies to.                                                                    
                                                                                                                                
CHAIR FATE said it is Section 22, page 15, line 2.                                                                              
                                                                                                                                
MS. RUTHERFORD  explained that if  an applicant fails  to respond                                                               
in  writing  to  a  written request  for  additional  information                                                               
within 14 days [of receipt of such request], it allows the 90-                                                                  
day  timeline to  be tolled  under certain  circumstances, as  do                                                               
paragraphs (2) and (3).                                                                                                         
                                                                                                                                
Number 2423                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA withdrew her objection.                                                                                 
                                                                                                                                
CHAIR  FATE  announced  that  the  objection  had  been  removed.                                                               
[Conceptual Amendment 2 was treated as adopted.]                                                                                
                                                                                                                                
REPRESENTATIVE  KERTTULA inquired  about  the proposed  amendment                                                               
from the City  & Borough of Juneau mentioned  previously.  [There                                                               
was no further discussion of this amendment on the record.]                                                                     
                                                                                                                                
The committee took a short at-ease at 2:45 p.m.                                                                                 
                                                                                                                                
Number 2454                                                                                                                     
                                                                                                                                
REPRESENTATIVE HEINZE  moved to report CSHB  191 [Version 03-0069                                                               
bil2.doc, 4/22/2003, 1:30 pm], as  amended, out of committee with                                                               
individual recommendations and the accompanying fiscal note(s).                                                                 
                                                                                                                                
Number 2483                                                                                                                     
                                                                                                                                
REPRESENTATIVE KERTTULA objected.  She  thanked the team from the                                                               
administration for its hard work  on this, acknowledging the huge                                                               
step forward.   However, she said it is almost  impossible to put                                                               
into words  the difficulties she  believes the bill  will present                                                               
to the state.   For example, the "breaking out of  DEC" is a huge                                                               
step that  will greatly impact  not only districts, but  also the                                                               
permitting process; it will take a long time to discuss.                                                                        
                                                                                                                                
REPRESENTATIVE  KERTTULA  noted that  this  program  has been  in                                                               
place almost  30 years, and  that there  are good and  bad things                                                               
about  it, including  delays  and  inconsistencies in  standards.                                                               
However, at  its heart, it  is how the  state - in  rural Alaska,                                                               
particularly -  has dealt with  local areas and the  control over                                                               
their resource  development.  She  pointed out that  standards in                                                               
some districts allow greater resource  development.  For example,                                                               
on the  Kenai Peninsula  there are standards  that actually  go a                                                               
step  further  than  the  state  in  encouraging  development  in                                                               
certain areas.  Similarly, Juneau  has areas where people want to                                                               
see  development,  balanced  against  areas  like  wetlands  that                                                               
people want to see protected.                                                                                                   
                                                                                                                                
Number 2559                                                                                                                     
                                                                                                                                
REPRESENTATIVE   KERTTULA  highlighted   some   of  the   issues,                                                               
including  moving  the  DEC  standards  completely  out  and  not                                                               
understanding  how it  will balance  when a  district enforceable                                                               
standard  comes up  against any  other law.   She  suggested this                                                               
should be  of interest and  some concern  not only to  people who                                                               
are  concerned about  preservation, but  also to  those concerned                                                               
about development, because what will be allowed isn't clear.                                                                    
                                                                                                                                
REPRESENTATIVE KERTTULA expressed hope  that over the interim the                                                               
districts will  come forward,  after having  time to  review this                                                               
and understand the issues, and  will come back to the legislature                                                               
next session.   She  suggested that eventually  some of  it might                                                               
conceivably  work, but  said some  won't.   She conveyed  concern                                                               
about  having duplicative  and confusing  processes, rather  than                                                               
bringing things  together, and said  she cannot support  the bill                                                               
in this  format because there are  too many issues and  it is too                                                               
confusing.                                                                                                                      
                                                                                                                                
Number 2632                                                                                                                     
                                                                                                                                
REPRESENTATIVE  MASEK  said  even   though  it  is  difficult  to                                                               
understand, it  seeks to put management  and development policies                                                               
into DNR;  she suggested this  will help promote  organization in                                                               
coastal  communities, ultimately  allowing more  local input  and                                                               
management of  zones.  She  proposed the need to  further develop                                                               
statewide coastal  management guidelines that include  input from                                                               
affected  zones   and  yet  don't  adversely   affect  management                                                               
objectives.   She said she  feels that the chair,  the committee,                                                               
the administrative staff,  and the industry have done  a good job                                                               
of creating  a partnership that  includes the needs  and concerns                                                               
of local communities as well as the need of the state to grow.                                                                  
                                                                                                                                
REPRESENTATIVE  MASEK  remarked  that curtailing  development  in                                                               
Alaska's  coastal  zone  is  not a  reasonable  option  in  these                                                               
difficult economic times; if the  need to protect the coast isn't                                                               
recognized, however, there  is a risk of damage  that affects the                                                               
standard of living and livelihood  of Alaska's coastal residents.                                                               
She  highlighted the  ongoing challenge  of managing  use of  the                                                               
coast so  that undesirable impacts  are minimized and  growth and                                                               
development are enabled.  Regarding  the unorganized borough, she                                                               
said she  believes the state  is obligated to manage  the coastal                                                               
areas to ensure  protection from harm in  addition to development                                                               
for the  future.  She  emphasized the  need for a  shared purpose                                                               
and cooperation among government,  industry, and the community in                                                               
order  to  ensure  sustainable   development  and  management  of                                                               
Alaska's  coastal  zones.    She offered  her  belief  that  this                                                               
legislation  can promote  that  cooperation, and  said she  feels                                                               
pretty comfortable moving the bill from committee.                                                                              
                                                                                                                                
Number 2792                                                                                                                     
                                                                                                                                
CHAIR  FATE  observed  that consistency  review  with  regard  to                                                               
coastal management  has been  a thorn.   He  suggested this  is a                                                               
"new skeleton"  to build  on, one  that is  much better  than the                                                               
system  of  the  past.    Commending  the  committee,  he  echoed                                                               
Representative Masek's support for the  work on the bill and said                                                               
it is  one of  the most  important bills  the committee  will see                                                               
during the session.                                                                                                             
                                                                                                                                
Number 2840                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GATTO,  remarking   on  the  almost  overwhelming                                                               
number of  versions and  changes, surmised that  there will  be a                                                               
lot of controversy.  He asked  the committee to remember that the                                                               
bill is designed to affect the  residents of Alaska, and that the                                                               
public process  requires a lot  of input [from  those residents].                                                               
He expressed  hope that over the  interim what is learned  can be                                                               
incorporated to improve the bill.                                                                                               
                                                                                                                                
Number 2953                                                                                                                     
                                                                                                                                
REPRESENTATIVE GUTTENBERG  expressed amazement  at the  amount of                                                               
work that  has gone into  this, recognizing that the  process has                                                               
been in place  30 years and that while some  people have problems                                                               
with  it,  others have  enjoyed  the  ability to  influence  what                                                               
happens  in their  communities.    He said  he'd  have been  more                                                               
comfortable  with the  bill  if a  stakeholders'  group had  come                                                               
forward with it.                                                                                                                
                                                                                                                                
TAPE 03-35, SIDE B                                                                                                            
Number 2988                                                                                                                     
                                                                                                                              
REPRESENTATIVE GUTTENBERG  indicated he'd  missed the  process of                                                               
[having all groups at the table].   Although he doesn't live in a                                                               
coastal community,  he said he  wants this process to  go forward                                                               
and work.  He expressed  concern that instead of streamlining and                                                               
making it go  forward in a smoother manner, this  will stop a lot                                                               
of things; people will need to  learn the process all over again,                                                               
and many of  the disputes will be decided in  court, which is the                                                               
slowest way  to get  answers.   He went on  to say  that although                                                               
he'd  like to  see economic  development, he  believes this  will                                                               
hurt the process instead of helping it.                                                                                         
                                                                                                                                
Number 2906                                                                                                                     
                                                                                                                                
REPRESENTATIVE  HEINZE  referred  to  the saying,  "If  it  ain't                                                               
broke, don't fix  it."  She opined that this  has been broken for                                                               
years, and  suggested [the  current version]  is something  to be                                                               
proud of.                                                                                                                       
                                                                                                                                
REPRESENTATIVE WOLF said his hat is off to the administration.                                                                  
                                                                                                                                
A  roll  call vote  was  taken.   Representatives  Masek,  Gatto,                                                               
Heinze, Lynn, Morgan, Wolf, and  Fate voted in favor of reporting                                                               
CSHB  191  [Version  03-0069 bil2.doc,  4/22/2003,  1:30  pm,  as                                                               
amended]  out   of  committee.    Representatives   Kerttula  and                                                               
Guttenberg  voted  against  it.   Therefore,  CSHB  191(RES)  was                                                               
reported from the House Resources Standing Committee by a vote                                                                  
of 7-2.                                                                                                                         
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
There being no further business before the committee, the House                                                                 
Resources Standing Committee meeting was adjourned at 3:01 p.m.                                                                 

Document Name Date/Time Subjects