Legislature(1993 - 1994)
02/11/1994 09:15 AM Senate FIN
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
MINUTES
SENATE FINANCE COMMITTEE
February 11, 1994
9:15 a.m.
TAPES
SFC-94, #23, Side 1 (220-end)
SFC-94, #23, Side 2 (end-450)
CALL TO ORDER
Senator Drue Pearce, Co-chair, convened the meeting at
approximately 9:15 a.m.
PRESENT
In addition to Co-chairs Pearce and Frank, Senators Rieger,
Jacko, Sharp, and Kerttula were present. Senator Kelly did
not attend.
ALSO ATTENDING: Dr. Paul Rusanowski, Division Director,
Division of Governmental Coordination, Office of the
Governor; Elizabeth Kerttula, Assistant Attorney General-
General Civil Section, Juneau office, Department of Law;
Mike Greany, Director, Legislative Finance Division; aides
to committee members and other members of the legislature.
VIA TELECONFERENCE: Willie Goodwin, Kotzebue; and Steven
Porter, ARCO Alaska, Anchorage. Barrow was on-line but no
one testified.
SUMMARY INFORMATION
SB 238: An Act establishing a procedure for review of
proposed projects under the Alaska coastal
management program, and relating to petitions for
compliance with and enforcement of district
coastal management programs under that program and
to the disposition of those petitions.
Elizabeth Kerttula, Assistant Attorney General-
General Civil Section, Juneau office, Department
of Law, and Dr. Paul Rusanowski, Division
Director, Division of Governmental Coordination,
Office of the Governor testified in support of SB
238. Amendments 1 and 2 were ADOPTED. SB 238 as
amended was REPORTED OUT of committee with a "do
pass" and a zero fiscal note for the Office of the
Governor.
SENATE BILL NO. 238:
An Act establishing a procedure for review of proposed
projects under the Alaska coastal management program,
and relating to petitions for compliance with and
enforcement of district coastal management programs
under that program and to the disposition of those
petitions.
CO-CHAIR PEARCE announced that SB 238 was before the
committee. She said that the Coastal Policy Council
coordinated state agencies and local coastal districts in
reviewing and issuing state permits for proposed development
projects effecting natural resources in our coastal zones.
SB 238 clarified when and how certain parties could petition
the Coastal Policy Council during a Coastal Zone Management
Program consistency review. SB 238 corrected a problem that
occurred when a petition was brought before the Council
after a final Commissioner level decision on a consistency
review had been made. Under current Coastal Management
Program statutes and regulations, the Resource Commissioners
of the departments cannot delegate their responsibility to
participate in the elevation of a consistency determination
nor may they delegate their authority to decide a petition
in a final consistency determination. However, as noted in
the informal AG's opinion that was included in the files,
the Commissioners also cannot sit in both capacities. The
bill would add clarification to the statute to insure that
complaints were heard and addressed in a timely manner. She
thought the bill insured that citizens, agencies and
effected projects would have a voice in the development
policies in our coastal areas. The bill was proposed as a
result of intensive collaboration between the coastal policy
council subcommittee, the Department of Law, Co-chair
Pearce, and other interested parties.
Co-chair Pearce invited Dr. Paul Rusanowski, Division
Director, Division of Governmental Coordination, Office of
the Governor, and Elizabeth Kerttula, Assistant Attorney
General-General Civil Section, Juneau office, Department of
Law, to join the members at the table.
DR. PAUL RUSANOWSKI said that SB 238 addressed a problem in
the Coastal Zone Management Program as Co-chair Pearce had
described in that the elevation process for project reviews
depended upon an elevation review by the directors of the
resource agencies, and, if unresolved, by the commissioners
of the respective resource agencies. The project was also
subject to petition to the Coastal Policy Council. This had
created a due process problem that had been brought to light
by the Attorney General opinion and required a fix. In
addressing what appropriate fix was necessary, the Coastal
Policy Council endorsed a statutory fix after a very long
consensus building process with a subcommittee and working
group. The fix proposed was a major improvement to the
overall Coastal Zone Management Program and to the dispute
resolution process that was built into it. In the proposed
amendment, a project that was undergoing consistency review
in the Coastal Zone Management Program would be subject to a
consistency review at the regional level which was the first
stage of review. If it was challenged by one of the parties
withstanding, it would go to the director level elevation
and ultimately to a commissioner level and then on to court.
A crossover would not be allowed of that project review to
the Coastal Policy Council. In lieu of that crossover
petition process to the Coastal Policy Council, an
alternative petition process had been incorporated in the
review at either the regional consistency review or the
director level review. Any of the parties participating in
the consistency review or a member of the public who had
commented on that project during the consistency review,
could petition to the Coastal Policy Council to insure that
their comments that had been submitted were fairly
considered in the consistency review process by the agency
conducting the review. The Coastal Policy Council would
review that petition and make a determination which comments
were fairly considered. If, in the opinion of the Coastal
Policy Council, such action had been taken, the petition
would be dismissed. If the Council thought a hard look had
not been taken, they would remand the consistency review
back to the director or regional level to reconsider those
comments in the process and render a new consistency
determination. This considerably expanded the participatory
role of the public in the process and insured that the
process conducted by the agencies did what the legislation
originally intended and was an improvement in the program.
The proposal had a negative fiscal note. He went on to
explain how the savings to the administration was
accomplished. At present, the program was subject to the
Alaska Procedures Act (APA) which required a formal hearing
process for any petitions. SB 238 removed the requirement
for APA and allowed an informal hearing process to take
place. Based on past petitions, it was estimated that the
cost of conducting a hearing was roughly $30,000 for each
petition received. Historically, one petition was received
a year. However, the bill also mandated that the public be
informed of all consistency reviews being conducted. It
would be necessary to expand some of the public notice
activities presently being conducted in the program. The
best estimate of projects that were not subject to public
notice was approximately 400 out of 1500 to 2000 projects
that would move through the consistency review process.
These were approximately equally divided between ADF&G,
Environmental Coordination, and DNR. The bill also
incorporated the ability of the Coastal Policy Council to
set the level of public notice to match the level of project
impact within the coastal zone. It was not necessary to
provide a maximum level of public notice and distribution of
information on every single review. As a consequence, it
was estimated that roughly 200 of the 400 projects that were
not public noticed now, would require a public notice in a
newspaper format. That would impact the present program
roughly by $20,000. The remaining 200 projects could be
covered by district notification, posting, radio
announcements and other forms of public notification. That
impact was estimated to be about $2,000. The increase of
public notice cost would be approximately $22,000 over
present activities but by moving out of the APA process and
allowing informal hearings, it was expected to save $30,000,
making a net savings of $8,000.
Dr. Rusanowski said he had two amendments to speak to.
In answer to Senator Rieger, Dr. Rusanowski said the Alaska
Coastal Policy Council was the policy body within the
Coastal Zone Management Program for the state of Alaska.
The Division of Governmental Coordination supported that
group and conducted the consistency reviews on behalf of the
Coastal Policy Council. In conducting those reviews, there
was a petition process built into the program that allowed
an aggrieved party to petition to the Coastal Policy Council
for actions that were inconsistent with the Coastal Zone
Management Program. Such petitions were not limited to
policy matters only but could cover any aspect of the
Coastal Zone Management Program. The Coastal Policy Council
was the board that made the decision as to whether it was or
was not consistent and what change was needed. It
authorized all district programs that were in place. In
order for a program to be consistent, it must be consistent
with the program and the enforceable policies, district
specific. When a consistency review was conducted, it was
the consideration of adopting a program (a coastal district
program, an area meriting special attention, some special
management unit), or a project proposed by an individual,
the federal government or the state that was being conducted
within a district or within the coastal zone of the state of
Alaska.
Dr. Rusanowski said the program was hierarchial. There was
a federal Coastal Zone Management Program in place. The
state of Alaska had an approved Coastal Zone Management
Program under this federal umbrella that was state wide for
the entire coast line of Alaska. Underneath that level,
districts or coastal resource service areas could be formed.
Those districts had their own programs that must be
consistent with state programs.
In answer to Senator Rieger, Dr. Rusanowski said the
Division of Governmental Coordination was staff to the
Coastal Policy Council. The program was originally written
by the legislature in 1977. If a district was formed to
develop a coastal management program, that district must get
the approval of the Coastal Policy Council before their
district program could be adopted. The Coastal Policy
Council made the determination that the plan as proposed was
or was not consistent with the state program and submitted
it to the federal program for their review.
Dr. Rusanowski said there were seven state members
(representatives of the various resource agencies) and nine
public members (different regions throughout the state) that
made up the Coastal Policy Council.
BETH KERTTULA said that in 1997, when Alaska created its
Coastal Management Program, it created the Coastal Policy
Council to be the body, or overseer of the whole program.
It was the authority body in place in the statutes. It also
created the avenue for the petition, so if a coastal
district citizen did not like a project or an activity that
was taking place, they could petition to the Alaska Coastal
Policy Council. This was the process until 1984, and there
were no regulations around the petition process. Governor
Sheffield did a permit reform. Then a body within the
Division of Governmental Coordination was created to do
reviews of all the permits that required consistency with
coastal management programs. She pointed out that the
permit process along side the regulation system created due
process problems. It made the Commissioner the final judge.
She went on to explain the effect of SB 238.
Senator Rieger pointed out the Commissioner would still be
involved twice. Ms. Kerttula agreed but said it was a
different decision. She and Senator Rieger discussed the
definition of a "hard look."
In answer to Senator Kerttula, Dr. Rusanowski said the state
members were the Director of Office of Management & Budget
or an alternate, the Commissioners of Commerce & Economic
Development, Fish & Game, Community & Regional Affairs,
Environmental Conservation, Natural Resources, and
Transportation & Public Facilities. He said they had to sit
and could not appoint alternates. Co-chair Pearce added
that the nine public members were appointed by the Governor
from a list of nominees from each district.
Co-chair Pearce gave some history to the problems that had
been on-going for years.
In answer to Senator Kerttula, Dr. Rusanowski said the
public members had to be elected officials of some kind.
Senator Kerttula MOVED amendment 1. Dr. Rusanowski
explained that amendment 1 addressed a concern that was
expressed that a reasonable period of time was an
appropriate designation but too vague to allow speedy
resolution. It had not been resolved in the consensus
process and this amendment inserted the words "But not more
than 30 days shall elapse between the filing of the petition
and the decision of the Council" on page 4, line 6. In
answer to Senator Rieger, Dr. Rusanowski felt that 30 days
was reasonable. No objection being heard, amendment 1 was
ADOPTED.
End SFC-94 #23, Side 1
Begin SFC-94 #23, Side 2
Senator Kerttula MOVED amendment 2. Dr. Rusanowski
explained amendment 2 was a technical amendment. He said
anyone could petition on a policy issue to the Coastal
Policy Council. In the petition process of taking a "hard
look" it was restricted to the public that had commented on
the project during the public comment period. Because these
two different groups occurred, both need to be referenced
and that was what amendment 2 did. Discussion was had by
Senator Rieger and Dr. Rusanowski regarding amendment 2 and
the parties involved. No further objection being heard,
amendment 2 was ADOPTED.
Co-chair Pearce announced the teleconference part of the
meeting would begin and introduced Steve Porter in
Anchorage.
STEVE PORTER, Arco Alaska, testified via teleconference from
Anchorage in support of SB 238 as amended. He said he was a
member of the advisory committee, and the bill had been
under review for at least four years. He felt the bill was
a consensus document most people could support.
WILLIE GOODWIN, former member of the Coastal Policy Council,
testified via teleconference from Kotzebue. He said he was
one of the strongest advocates for the ordinary citizen in
this process. He pointed out several of his concerns that
he had raised previously at the Council level. First, this
bill took away the public assurance that there was one final
appeal process before going to court and that was through
the Coastal Policy Council. The other point was when a
concern was "fairly considered" what guarantee would there
be that it would be truly considered before a determination
was made. Finally, every administration had different views
on resource management, and with SB 238, the final decision
would be in the administration's hands. He had concerns
about certain Commissioners in this administration making
those final determinations because of their views. And if
the appeal process was taken away, he did not see much
chance for anything to change. In regard to due process,
that had never been challenged. He did not see the reason
to change the way it was at present. He was afraid the
ordinary citizen would be given less chance to be heard.
Senator Kerttula MOVED CSSB 238(FIN) as amended from
committee with individual recommendations. No objection
being heard, it was REPORTED OUT with individual
recommendations, and a zero fiscal note for the Office of
the Governor showing a revenue of $(7.9). Co-chairs Pearce
and Frank, Senators Jacko, and Kerttula signed "do pass."
Senators Rieger and Sharp signed "no recommendation."
ADJOURNMENT
The meeting was adjourned at approximately 10:30 a.m.
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