Legislature(2005 - 2006)BUTROVICH 205
04/06/2005 03:30 PM Senate RESOURCES
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| SB102 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 102 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
April 6, 2005
3:39 p.m.
MEMBERS PRESENT
Senator Thomas Wagoner, Chair
Senator Ralph Seekins, Vice Chair
Senator Fred Dyson
Senator Bert Stedman
Senator Kim Elton
Senator Gretchen Guess
MEMBERS ABSENT
Senator Ben Stevens
COMMITTEE CALENDAR
SENATE BILL NO. 102
"An Act relating to district coastal management programs; and
providing for an effective date."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 102
SHORT TITLE: COASTAL MANAGEMENT PROGRAMS
SPONSOR(s): SENATOR(s) STEVENS G
02/14/05 (S) READ THE FIRST TIME - REFERRALS
02/14/05 (S) CRA, RES
03/14/05 (S) CRA AT 1:30 PM BELTZ 211
03/14/05 (S) Heard & Held
03/14/05 (S) MINUTE(CRA)
03/16/05 (S) CRA AT 1:30 PM BELTZ 211
03/16/05 (S) Moved CSSB 102(CRA) Out of Committee
03/16/05 (S) MINUTE(CRA)
03/18/05 (S) CRA RPT CS 1DP 3NR
NEW TITLE
03/18/05 (S) NR: STEVENS G, WAGONER, STEDMAN
03/18/05 (S) DP: ELLIS
03/18/05 (S) FIN REFERRAL ADDED AFTER RES
04/06/05 (S) RES AT 3:30 PM BUTROVICH 205
WITNESS REGISTER
DOUG LETCH
Staff to Senator Gary Stevens
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT:
GABRIELLE LAROCHE
LaRoche and Associates
555 Blue Sky Drive
Port Townsend WA 98638
POSITION STATEMENT: Supported SB 102.
TOM LOHMAN
North Slope Borough
No address provided
POSITION STATEMENT: Supported SB 102.
MARV SMITH, Community Development Coordinator
Lake and Peninsula Borough
No address provided
POSITION STATEMENT: Supported SB 102.
ACTION NARRATIVE
CHAIR THOMAS WAGONER called the Senate Resources Standing
Committee meeting to order at 3:39:01 PM. Present were Senators
Stedman, Dyson and Chair Wagoner. Senator Guess joined the
committee at 3:40:02 PM.
SB 102-COASTAL MANAGEMENT PROGRAMS
CHAIR THOMAS WAGONER announced SB 102 to be up for
consideration.
DOUG LETCH, staff to Senator Gary Stevens, explained that SB 102
will extend the deadline for Alaska Coastal Management Program
(ACMP) revisions. The program is a partnership between federal,
state and local governments that provides state and local
governments a voice in the federal decision on coastal issues.
Alaskans have used it since 1977 and it channels millions of
dollars in federal grant money to the state to help guide
coastal development.
Without this program, state and local governments will
lose their ability to control development on federal
land in the Outer Continental Shelf. Additionally, the
state will lose millions in coastal management
planning money. Two years ago, the legislature enacted
HB 191 that substantial revised the state coastal
program. As a result, the federal office of Ocean and
Coastal Resource Management (OCRM) must approve this
revised program. Since then, OCRM has determined that
additional revisions are necessary before it can grant
approval. The 2003 legislation also included state
deadlines for revisions to local coastal programs. The
coastal districts are attempting to follow the
statutory directive to revise their programs in order
to meet those new requirements. However, OCRM has
identified problems with the state's guidance to local
districts regarding the scope and contour of their
program. Our districts are asking for some more time
to cope with these changes and what may come down the
line.
Because of OCRM's decisions, the state will have to
revise their regulatory guidelines for the local
districts before the new program can be approved, if
the state chooses to go that way. In turn, local
districts will have to rerevise their programs to meet
new guidelines. So, it's become kind of a complicated
thing for our districts.
What SB 102 will do is extend the deadline for
district coastal program revisions and will annul the
existing program upon federal approval of the state's
program. We believe that the extension will ensure an
orderly and efficient transition to whatever the new
program may be. When this bill was heard previously by
the Community and Regional Affairs Committee, the one
thing that we heard overwhelmingly was that coastal
district managers needed more time to come up with
revised plans.
RANDY BATES, Deputy Director, Office of Project Management and
Permitting (OPMP), Department of Natural Resources (DNR), said
that this office is the lead agency for the Alaska Coastal
Management Program. He said he had a productive meeting last
week with officials of the state and the coastal district
representatives. They talked about the state's commitment to
pursing the federal approval of the Alaska Coastal Management
Program (ACMP) and listened to requests from the districts for
additional time. He offered to answer the committee's questions.
3:44:58 PM
SENATOR GRETCHEN GUESS asked if the administration supports SB
102.
MR. BATES replied it does not support SB 102.
SENATOR GUESS asked why in general he has a problem with giving
districts more time to finish their plans.
MR. BATES replied that the districts have been given the
necessary information and timeline to get the job done by July
1. Also, there is a fiscal note, which causes concern. The
administration is in ongoing negotiations with OCRM, the
governing body of the federal coastal zone program, and it
doesn't seem appropriate to extend deadlines while still
fighting for approval of a federal program. "To give a federal
oversight agency like this additional time to push back on the
state and mandate a program that does not work for our state
doesn't seem prudent."
3:48:36 PM
GABRIELLE LAROCHE, LaRoche and Associates, said she is currently
working with nine coastal districts around the state including
the Aleutians West Coastal Resource Service Area to revise their
plans. Although she understands the administration is concerned
that an extension may compromise its negotiation position with
the federal approving agency, she suggested a scaled back
extension that is not tied to the OCRM approval of January 1.
3:50:02 PM
She said all her clients will meet the July 1, 2005 deadline,
but more time would significantly improve the public process and
allow the state the time it needs to resolve remaining
differences with OCRM.
One of the remaining issues of most concern is of
federal consistency for the requirement that federal
permits and actions be conducted to the maximum extent
practicable with the state plan and local plans. How
this issue is resolved between OCRM and the state does
have bearing on the manner in which the plans are
revised.
For example, she is currently working on a revision with Sitka
on public use management plan that is a co-management plan for
federal lands and adjacent tidelands. That plan has been drafted
to comply with the new state laws, but she did not think it
would meet the requirements of the federal Coastal Zone
Management Act. How the issue is resolved between OCRM and the
state will require additional amendments. She said it would make
sense to give them time to resolve this issue before requiring
the districts to submit the plans.
The second issue is that the public process is extremely limited
and only a 21-day covered review is required by law. This means
that many districts are putting forth plans without having had
adequate funds to work with cities and villages within their
borough and within the coastal resource service area. With more
time, this outreach could be conducted and a plan could more
accurately reflect issues of local concern. Since HB 191 was
very focused on issues of local concern, this was a major shift.
With additional time, the plans would much better reflect the
legislative intent.
3:52:58 PM
TOM LOHMAN, North Slope Borough, said he has worked with the
coastal program for 18 years and strongly supports SB 102. He
was concerned about the two timelines involving a July 1 date
imposed by HB 191 a couple of years ago. The first one is the
date by which revised programs have to be submitted to DNR and
the second is the date by which the state has to resolve issues
with OCRM. He doesn't understand why DNR continues to link the
deadlines of those two issues. All coastal districts are
committed to producing programs by the July 1 deadline. The
North Slope Borough has not been part of the negotiations
between DNR and OCRM, but if they do not reach resolution of the
outstanding concerns and the program goes away, that would
dramatically not be in the best interests of the state.
MR. LOHMAN said the reason the districts want more time is
because they want to produce decent products and they only want
to do it once. The deadline was ambitious to begin with and was
premised on the fact that changes were considered to be routine
rather than a full amendment. The problem was compounded by
DNR's acknowledged significant lack of staff for several months
after the program was moved from the Governor's office to DNR.
The problem was further compounded by the way the
consultants were hired to draft the initial version of
the regulations that are now at issue. The districts
have said that there has been a significant lack of
clarity and guidance from DNR regarding their allotted
district plans - what could be and should be written
into those plans - what policies could be approved by
DNR within the constraints of 191. We believe, the
districts, that not only has there been a significant
lack of clarity, but the trend has been with every
subsequent clarification of guidance of interpretation
that we've gotten, that we can do less and less with
out local district plans than was originally testified
to when HB 191 was being considered by the
legislature. We have had to continually go back to the
drawing board to figure out what they have left.
That's really the attitude I think the districts have
- is with each successive interpretation by DNR, we
try to figure out what we have left.
3:58:56 PM
Districts have had to truncate normal planning procedures. The
public outreach process has been severely abbreviated. He said
the North Slope Borough's initial plan took five years to
develop. If intent of HB 191 was to streamline development and
enhance opportunities around the coastal areas of the state,
this will likely cause the opposite because his district is
going to submit a plan that is not complete.
He emphasized that his borough's plan has had an abbreviated
public review and was not preceded by visits to villages or
substantive sit-downs with the oil and gas industry. Since it
must be reviewed in such a hurry, he must advise the planning
commission to err on the side of being more restrictive to
protect the resources and subsistence opportunities on the
Slope. It is unfair to the public to put out a plan that, "We,
ourselves, do not believe in and is incomplete."
4:01:09 PM
MR. LOHMAN said submitting plans early would force confrontation
with oil and gas companies on the Slope. Part of the reason the
original plan took five years is because of the give and take
with the industry.
4:01:39 PM
DNR has said the districts can continue to work after the
deadline, but the problem with that is every time a district
that has already submitted a plan sits down to figure out what
regulations mean, it loses enforceable policies at the local
level, which is counterproductive.
4:02:25 PM
MR. LOHMAN said another important question is where the money
will come from if the revision time is extended. Federal grants
as well as other financial resources have been used up and other
upcoming federal grants will most certainly be insufficient to
implement the program and continue to revise it at the same
time.
4:03:20 PM
People will be shocked to see how little of their plans are
left. Issues need to be worked out in front of the public with
all the cards on the table - with industry and everyone. That is
not possible with the July 1 deadline.
4:06:06 PM
MR. LOHMAN repeated that he did not see why the two deadlines
are linked. Existing state standards expire on July 1 and
preliminary approval is needed from OCRM or the program is lost.
This, to him, seemed independent of the need for districts to
have more time to revise their plans and how that resolution is
reached will decide, in some ways, what can be included in the
plans. He figured if OCRM issues are going to get resolved soon
anyhow, why not give the districts the extension they need to do
the best job they can.
4:08:14 PM
CHAIR WAGONER said that districts have had from 2003 until June
2005 to work on the plans.
MR. LOHMAN replied not exactly. He said the regulations are the
blueprint the districts are working off of. There was a several
month delay before DNR, that was understaffed, could put
personnel in place and before contractors were hired (around
October or November of 2003) to put regulations in place that
communities needed for revising their plans.
There is very little in [HB] 191 that gives us
direction in terms of the nuts and bolts of revising
our program. We had to wait for the regulations. That
process was extremely protracted.
4:11:14 PM
MARV SMITH, Community Development Coordinator, Lake and
Peninsula Borough, supported SB 102. He echoed Mr. Lohman's
concerns saying the borough will submit its plan on time, but is
not really proud of it. It needs a lot more work provided
funding is available.
4:12:58 PM
He commented that this is a state's right issue, but before that
it is a community rights issue.
4:15:43 PM
SENATOR ELTON joined the committee.
MR. SMITH said his district is in total support of a federal
program with state participation, otherwise there wouldn't be an
ACMP. The State of Alaska has 52 percent of the nation's
coastline and there are about 300 villages along it. It is not
fair to the rest of the nation if Alaska is not part of the
federal program.
4:18:16 PM
SENATOR SEEKINS joined the committee.
MR. SMITH concluded by urging the committee to pass SB 102 and
give the districts time to work the plans out and get them all
approved. Six months would allow his district to get through the
subsistence season. He reminded them that in 10 years all 27 of
the plans would come due again. If districts have to come back
in two years to fix their plans, that would be a planning
nightmare.
4:20:08 PM
CHAIR WAGONER thanked him for his testimony.
4:20:26 PM
SENATOR GUESS asked Mr. Bates to describe the relationship
between the two deadlines.
MR. BATES referenced a timeline chart with a deadline of July 1,
2004 for DNR to rewrite three chapters of regulations that
implement the ACMP. Those went in place on July 1, 2004. Then,
HB 191 gave the districts one year from the time the regulations
went in effect to write their plan revisions, which established
July 1, 2005 as their deadline.
Another transition provision in HB 191 sunset the coastal
district standards on July 1, 2005. Those are the state
standards that are used within a consistency review process for
project compliance.
4:23:36 PM
SENATOR GUESS said it seems as if the administration is in
negotiation with OCRM.
MR. BATES replied that is correct.
SENATOR GUESS said she is still missing the connecting
relationship between those negotiations and the district plan
deadline.
MR. BATES responded that he submitted an amended coastal
program, which included the statutes and regulations, in
December 2004. OCRM came back on January 28th with a 49-page
letter detailing numerous "failures" or "program approvability
issues" that needed to be addressed. On February 23, the
Governor issued a very strong letter that said:
We believe we've developed a program that works for
Alaska and is approvable and OCRM needs to move their
position and adhere to the intent of the federal
program act and work and assist the state in preparing
a program that works for our management needs.
In response to that letter, OCRM came back on March 25
and whittled those 49 pages down to four basic issues
- three basic issues, I would say, for the most part.
Because the one issue that has been brought up by
other testimony here is the scope and content of
coastal district plans. In fact, OCRM determined
th
within their March 25 letter that the information
included in the December 16 submission was sufficient
- did describe in necessary detail the information for
coastal districts, their participation and how they
can write district policies. So, we have no regulatory
revisions to make regarding the scope or content of
district policies.
4:25:58 PM
The department continues to negotiate with OCRM and hopes to
detail a response to the outstanding issues within a couple of
days.
As part of that, we don't feel it is necessary to
extend the coastal district deadlines. We expect OCRM
to respond to us following our letter...and we're,
quite honestly, hopeful that they will come back and
give us the okay or the approval sign to keep moving
forward and pursue the changes that we're proposing to
address their approvability issues.
4:26:47 PM
SENATOR GUESS asked what the four issues are.
MR. BATES replied in general they include the application of
district policies in the designated areas - "the effects test."
OCRM's letter suggested the projects needed some regulatory
revisions. The second issue is compliance with local government
regulations if the district plan revisions go into effect in
2006 and the state's standards are sunset on July 1, 2005.
Third, OCRM wants more concise plans from the districts. The
fourth issue is the habitats policy, which state standards
address, but OCRM wants them to address impacts to the
ecological functions of habitat.
4:29:28 PM
He emphasized that regulatory changes to accommodate changes are
unrelated to how districts craft their policies.
4:30:16 PM
SENATOR GUESS asked him if he meant the four issues don't impact
the plans, but will impact the implementation of them.
MR. BATES replied yes that was his summary.
4:30:49 PM
SENATOR GUESS asked why the administration opposed extending the
deadline. If people have a better public process for a better
quality plan, what is the downside on the public policy side in
giving communities more time?
MR. BATES responded by pointing out that they are dealing with
the CS SB 102.
The language within that committee substitute is
geared off of the approval of NOAA and that the year
that the districts are asking for is year from the
date OCRM approves the Coastal Management Program.
When we get to that fact...we're talking about 2007
when districts are to submit their plans. We don't
expect NOAA to complete NEPA before at least this next
Christmas, if not several months after that."
MR. BATES said the plans need to be done sooner rather than
later and the average age of the coastal district plan is 14
years. The plans are out of date; there was a need for reform.
That is part of what HB 191 did. The goal is to streamline the
program and bring some objectivity to it.
4:33:11 PM
SENATOR GUESS asked what he thought about extending the review
period for six months and decoupling it from the approval and
the deadline.
MR. BATES replied he would look at that.
4:33:39 PM
SENATOR ELTON asked why a one-year period was wrong.
MR. BATES replied that the state still believes the plan that it
put together is approvable with minor regulatory changes.
4:35:08 PM
SENATOR ELTON said the problem for the coastal districts is that
they don't know what will be approved. He and the districts have
heard reassurances before from the department before.
MR. BATES said he believes he has an approvable program and will
respond to OCRM with it in a few days. He looks forward to a
quick response.
SENATOR ELTON noted for the record that he has heard that before
and it hasn't happened.
4:36:39 PM
CHAIR WAGONER asked if coastal districts said they could have
their plans in by July 1.
MR. BATES replied that is true and his office has been working
very hard on reviewing those plans that have already come in for
public review.
CHAIR WAGONER asked if several districts said if they don't have
their plans in by July 1, they would not receive the necessary
funds to update their plan.
MR. BATES replied that he heard that, too.
CHAIR WAGONER said that confused him.
MR. BATES said that HB 191 mandated all 33 coastal districts to
review and revise their coastal plans and submit them for DNR
review and approval in compliance with the new statutes and
regulations that it promulgated. Twenty-seven of the 33 coastal
districts are complying with that. As part of their efforts to
revise their plans, they have been provided with $900,000 in
planning monies. If a district fails to get its plan revisions
in on time, by July 1, 2005, it will lose priority processing.
He only has enough staff available to review the 27 or fewer
plans that come in and he has created a specific regulatory
process to accommodate the shortened timeframe.
If a district wants to continue in the coastal
management arena, they can certainly continue to make
their plan revisions under the other regulations
within the Coastal Management Program, which is just a
little bit longer and involves more public process,
but there is a chance that their plan will sunset July
1, 2006, which is another provision within HB 191.
4:39:58 PM
SENATOR ELTON said it has been characterized to him that
Aleutians West has submitted a plan and DEC has raised
significant issues with it. He asked if he was suggesting that
the plans that are submitted in haste are approvable under the
state's process and if not, that amendments could be added to
them.
MR. BATES replied saying that a public review process was
created within ACMP regulations that are specific to timeframes
in HB 191. Accordingly, the districts develop a plan and put it
out for a minimum 21-day public comment period. Once comments
are considered, they will revise their enforceable policies as
appropriate. The plan then passes through the assembly, council
or CRSA board and will be forwarded to his office by June 30,
2005. HB 191 requires those plans to be in accordance with
statutes and regulations and they undergo a full state review
process.
4:43:04 PM
SENATOR ELTON asked if everything goes perfectly, when would he
expect an approved Aleutians West plan.
MR. BATES replied:
I believe this is an efficient, streamlined, and
effective planning process to get program approval or
program changes made for the coastal district plans. I
would expect with Aleutians, as with a majority of the
other 26, 27, coastal districts that we would be
forwarding those to the commissioner for signature and
then on to OCRM who will again need to review and
approve these plans. I imagine that will be April,
May, of 2006. What we figure it to be is about a 10-
month process from July when we receive these plans.
4:44:31 PM
CHAIR WAGONER noted there were no further questions and set SB
102 aside at this time. He adjourned the meeting at 4:44:56 PM.
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