Legislature(2003 - 2004)
04/28/2003 03:33 PM Senate RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
April 28, 2003
3:33 p.m.
MEMBERS PRESENT
Senator Scott Ogan, Chair
Senator Thomas Wagoner, Vice Chair
Senator Fred Dyson
Senator Ralph Seekins
Senator Ben Stevens
Senator Kim Elton
Senator Georgianna Lincoln
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 143
"An Act relating to the Alaska coastal management program and to
policies and procedures for consistency reviews and the
rendering of consistency determinations under that program;
relating to the functions of coastal resource service areas;
creating an Alaska Coastal Program Evaluation Council;
eliminating the Alaska Coastal Policy Council; annulling certain
regulations relating to the Alaska coastal management program;
relating to actions based on private nuisance; relating to
zoning within a third class borough covered by the Alaska
coastal management program; and providing for effective dates."
HEARD AND HELD
SENATE BILL NO. 88
"An Act relating to standards for forest resources and
practices; and providing for an effective date."
MOVED SB 88 OUT OF COMMITTEE
SENATE BILL NO. 56
"An Act relating to sport fishing license fees and anadromous
king salmon tag fees for residents of Yukon, Canada."
SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
SB 143 - See Resources minutes dated 4/23/03 and 4/25/03.
SB 88 - No previous action to record.
SB 56 - No previous action to record.
WITNESS REGISTER
Mr. Marv Smith
Lake and Peninsula Borough
PO Box 495
King Salmon, AK 99613
POSITION STATEMENT: Expressed numerous concerns about SB 143
and urged members to slow its progress down
Ms. Paula Terrell
Alaska Marine Conservation Council
No address provided
POSITION STATEMENT: Urged members to hold SB 143 for the
interim for further work
Ms. Marty Rutherford
Department of Natural Resources
400 Willoughby Ave.
Juneau, AK 99801-1724
POSITION STATEMENT: Presented SB 143 for the Administration
Mr. Breck Tostevin
Department of Law
PO Box 110300
Juneau, AK 99811-0300
POSITION STATEMENT: Answered questions about SB 143
Mr. Pat Galvin
Department of Natural Resources
400 Willoughby Ave.
Juneau, AK 99801-1724
POSITION STATEMENT: Answered questions about tribal councils in
relation to SB 143
Mr. Brian Hove
Staff to Senator Seekins
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented SB 88 for the sponsor
Mr. Jeff Jahnke
Division of Forestry
Department of Natural Resources
400 Willoughby Ave.
Juneau, AK 99801-1724
POSITION STATEMENT: Answered questions about SB 88
Mr. Albert Pagh
4 Star Lumber
2849 Parks Highway
Fairbanks, AK 99709
POSITION STATEMENT: Believes SB 88 is unnecessary
Mr. Rick Smeriglio
Board of Forestry member
Seward, AK
POSITION STATEMENT: Supports SB 88
Mr. Eric Pyne
Boreal Forest Products &
International Woodcutters Association
PO Box 82694
Fairbanks, AK
POSITION STATEMENT: Supports SB 88
Ms. Leslie Gustafson
White Spruce Enterprises, Inc.
10293 Old Valdez Trail
Salcha, AK 99714
POSITION STATEMENT: Supports SB 88
Mr. Robert Ott
Tanana Chiefs Conference
122 First Ave.
Fairbanks, AK 99701
POSITION STATEMENT: Supports SB 88
Mr. James V. Drew
4725 Villanova Dr.
Fairbanks, AK 99709
POSITION STATEMENT: Supports SB 88
Ms. Jan Dawe
Alaska Boreal Forest Council
PO Box 84530
Fairbanks, AK 99709
POSITION STATEMENT: Supports SB 88
Mr. Chris Stark
PO Box 80543
Fairbanks, AK 99708
POSITION STATEMENT: Supports SB 88
ACTION NARRATIVE
TAPE 03-34, SIDE A
CHAIR SCOTT OGAN called the Senate Resources Standing Committee
meeting to order at 3:33 p.m. All members were present except
Senator Stevens who arrived shortly thereafter.
SB 143-COASTAL MANAGEMENT PROGRAMS
CHAIR OGAN announced that he intended to finish taking public
testimony today on SB 143. He said he is comfortable with the
legislation as is, but will abide by the wish of the committee
regarding moving it from committee.
SENATOR WAGONER informed members that he planned to offer an
amendment.
CHAIR OGAN called the first witness.
MR. MARV SMITH, Community Development Coordinator for the Lake
and Peninsula Borough, said he is not aware of the change the
proposed amendment will make. He thanked all of those involved
for making significant changes to the bill. He believes the
committee substitute is much better, however, he still has a few
concerns about the legislation.
MR. SMITH said Section 14 limits communities too much. It is
questionable how many of the Lake and Peninsula Borough's
policies can be carried forward or used at all. The Borough's
specific concerns are protecting subsistence and commercial
recreational use of the area. Another concern is that DEC will
have total control over air and water quality, which he believes
is too far reaching. The 90-day limit in Section 22 will put the
Borough in jeopardy if it requests additional information from
the contractor and the contractor elects not to comply. He said
holding public hearings in 16 villages within the Lake and
Peninsula Borough will be very expensive. He hopes that
additional funding will be made available for that purpose. He
asked committee members to "slow this bill down."
MS. PAULA TERRELL, representing the Alaska Marine Conservation
Council (AMCC), urged the committee to consider the fact that
the Coastal Zone Management Program is very complex. While
changes have been made to the legislation, problems still exist,
specifically with the broadness and vagueness of the bill and
the impacts it will have on the coastal communities. She said
she does not doubt there are problems with Alaska's coastal
management program, but to pass legislation with such sweeping
impact is "throwing the baby out with the bathwater." She asked
the committee to bring a group of stakeholders together,
including coastal communities, industry, and agencies, to look
at some of the problems during the interim. She believes that
would create a win-win situation and avoid the controversy
surrounding this legislation.
CHAIR OGAN said the last Administration promoted stakeholder
groups but he burned out on that approach because when it was
used for a lease sale in Cook Inlet, it involved the most
extensive public process ever used for a lease sale. He stated:
If somebody didn't like the results on it they had a
stakeholders' process that was totally outside of the
bounds of statute and regulation and the feel good
thing that delayed the project and cost everybody a
whole bunch of money and they ended up doing it anyway
but I'm not a big fan of stakeholder groups.
MS. TERRELL said there is a difference in that the entire
purpose of the coastal management program is to draw in and
coordinate with people from diverse groups and interests. She
pointed out the coastal communities want development. However,
they want to be able to control their destinies in how that
development is planned.
CHAIR OGAN announced that with no further participants, public
testimony was closed. He asked Ms. Rutherford to address the
committee.
MS. MARTY RUTHERFORD, representing the Department of Natural
Resources (DNR) and the Administration, told members that Mr.
Breck Tostevin of the Department of Law, Mr. Pat Galvin, the
past director of the Division of Governmental Coordination
(DGC), and Mr. Randy Bates, the newly appointed coastal program
coordinator with DNR, were accompanying her and available to
answer questions.
MS. RUTHERFORD told members that a clarifying amendment to
Section 11 was distributed.
SENATOR BEN STEVENS moved to adopt Amendment 1, which reads as
follows.
A M E N D M E N T 1
OFFERED IN THE SENATE RESOURCES COMMITTEE
TO: SB 143
Page 8, line 10:
Delete "a new subsection"
Insert "new subsections"
Page 8, line 13, following "purposes." through line
22:
"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.
SENATOR DYSON objected for the purpose of discussion.
MS. RUTHERFORD explained that the Administration received
comments from several coastal districts expressing a lot of
concern about the third sentence of Section 11. Their concern
was that Section 11 prevented any district enforceable policies
on the Outer Continental Shelf. That was not the intent, nor the
effect of Section 11 in the Administration's opinion. However,
in order to clarify that coastal districts can have enforceable
policies applicable to federal activities, activities on federal
lands, and activities in the Outer Continental Shelf, the
Administration prepared Amendment 1 to clarify that DEC's air,
land and water quality standards are not the exclusive standards
that would apply to those types of consistency reviews.
CHAIR OGAN asked Mr. Tostevin to testify.
MR. BRECK TOSTEVIN, Department of Law (DOL), told members that
Amendment 1 amends Section 11 of the bill. Section 11 currently
provides that 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. The amendment inserts additional
language, which states, "for those purposes only" and is
followed by two paragraphs. The first paragraph deals with
activities that DEC permits. The issuance of a DEC permit would
constitute consistency for those purposes for those activities.
The second paragraph discusses projects that involve a federal
activity, an activity on federal lands, or on the Outer
Continental Shelf where DEC has no permitting authority. For
consistency review purposes, DEC would apply these air, land and
water quality statutes and regulations for those activities. It
then creates a new section (c) that provides that for those
federal consistency reviews, DNR would, in addition to its
review under the consistency review statute (AS 46.40.096),
coordinate with DEC and DEC would make the finding with respect
to the more narrow purposes of the activities subject to the DEC
standards. He stated this is a clarifying amendment to make sure
that district enforceable policies could be established on Outer
Continental Shelf activities.
CHAIR OGAN asked if (b)(2) is the language on lines 11 through
17 of the bill.
MR. TOSTEVIN said the insertion starts on line 13 and ends on
line 22.
SENATOR LINCOLN asked Ms. Rutherford if Amendment 1 will address
Mr. Smith's concerns about Section 14 in regard to it limiting
subsistence and recreational activities too much.
MS. RUTHERFORD said she does not believe it will. She said other
districts indicated they want surety that local enforceable
policies could be applied to federal lands and the Outer
Continental Shelf. She said she would speak to what is within
the parameters of Section 14, the test, for local enforceable
policies.
CHAIR OGAN interrupted Ms. Rutherford and asked that the
discussion be kept to Amendment 1 at this time. He noted that
with no further discussion or objection, Amendment 1 was
adopted.
MS. RUTHERFORD said Senator Lincoln's question brings her to the
next item she wanted to discuss, that being the parameters of
the Section 14 test for developing local enforceable policies.
She was asked by the House Resources Committee last week to
provide six examples of some district enforceable policies that
met the requirement of that test. She said she provided Senate
Resources Committee members with nine examples. Those examples
meet the requirements of Section 14 but where applicable, a
district may need to provide some support - an analysis and
justification within that district plan on how the policy meets
the matter of local concern. As is the current situation, the
local policy cannot unreasonably restrict or exclude a use of
state concern, for example oil and gas activities. She said it
is also important to note that these example policies are based
upon existing district enforceable policies. Some of the
language in them was changed to meet the test embedded in
Section 14. Those policies were also selected based upon the
current state and federal regulatory regime, recognizing that
they currently fill areas that are not otherwise adequately
addressed by state or federal law. Should the state or federal
law ever expand to address those issues, those district
enforceable policies would have to be repealed. She said those
policies were developed by the team who worked on this
legislation and they were reviewed by the Department of Law and
the Governor's Office.
MS. RUTHERFORD added the Murkowski Administration feels, after
looking at these district enforceable policies, that the
districts put a great deal of effort into establishing them. The
Administration's strategy is to have the resource agencies
review all of the local enforceable policies as they are being
rewritten to be more concise and non-duplicative, as well as to
see if any should be developed into statewide standards. She
said the policies demonstrate that districts have a great deal
of room to develop policies that address issues of local
concern.
CHAIR OGAN referred to Section 14(2)(A) and (B), which require
plans to be clear and concise and to use precise, prescriptive
and enforceable language and asked if that is an oxymoron. He
noted that is a major departure from current statute.
MS. RUTHERFORD said she understood Chair Ogan's point but that
is the goal.
CHAIR OGAN asked what will happen if the plan is not "sensitive
to development" [language on page 10, line 24].
MS. RUTHERFORD said the intent is to have the policies focus on
areas of specific concern about the negative impact of
development on a resource.
CHAIR OGAN referred to language on page 10, lines 27 and 28,
which reads, "of unique concern to the coastal resource district
as demonstrated by local usage or scientific evidence," and said
he interprets that to mean we need to be sensitive to
development and sensitive to local concerns and balance the two.
MS. RUTHERFORD agreed and added the district also has to make a
case that the concern is specific to that district, for example
around an area used for subsistence egg gathering.
SENATOR DYSON said he personally believes it is always good to
have the stakeholders involved in the process. He thought the
Chair was speaking to an elaborate process, sometimes referred
to as a stakeholder process, that adds a great deal of
complexity. He asked Ms. Rutherford for assurance that the bill
as amended gives all of the relevant parties who live or work in
the area a place and time to have a voice in the decision making
process.
MS. RUTHERFORD said the simple answer is yes. The CS assures
that the current structure of the coastal management program
will continue. That means the districts will be able to propose
to the commissioner of DNR local enforceable policies that meet
this test, with the exception of those activities within the
permitting purview of DEC for air, land, and water quality
standards. This bill sets those aside as being deemed consistent
once DEC determines those projects have met DEC's standard
requirements.
SENATOR DYSON asked Ms. Rutherford to review what the DEC
process allows for air and water control. He added that he wants
to make sure that everyone is clear that public input is not
diminished in any way.
MS. RUTHERFORD said the DEC permitting authorization process has
regular intervals for public participation.
SENATOR DYSON asked for a description of the intervals during
which relevant stakeholders have an opportunity for input and to
challenge or appeal.
MR. BRECK TOSTEVIN said all DEC permits require public notice.
When an applicant applies for a permit, DEC publishes a notice
and the public has an opportunity to comment. Once the permit is
issued, the public can request an administrative adjudicatory
hearing concerning the permit. If a party is still aggrieved,
that party can appeal to the court.
SENATOR DYSON asked if, in theory, this legislation eliminates
duplication in the process. He also asked Ms. Rutherford to
describe the remainder of the process.
[CHAIR OGAN interjected to note that Representative Kerttula had
joined the committee.]
MS. RUTHERFORD said the intent of the legislation is to
eliminate the duplication that currently exists within the
program and the often very elongated timeframe associated with
the more complex DEC permits, such as air and contingency
planning. She then said, regarding the remainder of the process,
once a district goes through its own process to determine what
it wants to propose to DNR as a local enforceable policy, that
triggers DNR's review process. Like DEC, that process is laid
out in statute and regulation and contains a very extensive
public notice process. That is followed by an administrative
appeal process and judicial review.
SENATOR DYSON commented the notification process is worrisome to
him. Unless someone is paying attention to the fine print in a
newspaper and knows where and when to look, it is easy to
overlook. He asked if DNR will use the best media available in
an area, sometimes AM radio, to let the public know that an
application is in process.
MS. RUTHERFORD said DNR does not always use public radio, but
its notices have a large circulation through newspapers. She
said in this case, DNR would be working directly with the
districts. In her experience, the districts have been good at
assuring that their residents are aware of what is happening and
that they have input.
SENATOR DYSON asked if DNR keeps the information updated on a
web page or through electronic media. He also asked if
stakeholder groups could ask in advance to be notified if they
were particularly interested in activities in a particular area.
MS. RUTHERFORD said DNR and DGC use the web extensively; DNR
accepts comments through the web and has extensive distribution
lists for notification purposes.
CHAIR OGAN acknowledged that DNR does a great job of
notification.
SENATOR SEEKINS said he assumes there is always an opportunity
for any interested party to comment but not to have a vote or
veto power. He said that is where the stakeholder process
concerns him. The state has a statutory and regulatory process
designed to gather public comment in the best possible way. In
addition, he pointed out the stakeholder process sometimes ends
up being a non-statutory process where people are invited to the
table because:
...they are concerned about Mother Earth in total and
think that at that point by being able to not partake
in the public process that is statutory, to be able to
have a vote in a non-statutory process and what I'm
hoping is that we don't have any of that in this
legislation, that the statutory public process is all
that we have and that we don't come in with these
delay tactics called - so called stakeholder groups.
Is there any chance that under these regulations and
this bill we're going to see the ability for the non-
statutory process to come up?
MS. RUTHERFORD said she believes the Senator can rest assured
this program will rely upon the statutory and regulatory public
process that will allow for an extensive and adequate public
process but it does not embed any kind of a stakeholder process
into the decision-making.
CHAIR OGAN commented that a future administration could do that,
as has been done in the past.
SENATOR SEEKINS said that is why he was trying to assure that
discretion is eliminated as much as possible. He then asked if
the other political subdivisions of the state have a
responsibility to notify their residents.
MS. RUTHERFORD said every municipality, as well as the coastal
resource service areas, has requirements for public notice. She
said the process is a "ground-up" process. She added the
redundancy is appropriate because it allows the districts the
opportunity to have a dialog with their own constituents. As it
moves up to the decision-making level in state government,
another public process allows for broader participation.
MS. RUTHERFORD then said she would like to clarify some
confusion expressed about whether this legislation will require
a rewrite of a lot of different standards. The reality is it
does not require a rewrite of any standards other than the
coastal management statewide standards and local plans. It does
not require a rewrite of DEC air, land and water quality
standards. It does not require a rewrite of DNR's land
management regulations. She noted this bill retains the
program's basic structure, including the coordination function
when a project is proposed. It allows the districts to
coordinate decision-making through the consistency review. It
also retains the districts at the table. With the exception of
DEC's air, land and water quality standards, it allows local
enforceable policies. It does not diminish an incorporated
municipality's Title 29 planning and zoning authorities. Section
28 contains a clause to that effect.
CHAIR OGAN thanked Ms. Rutherford for her review.
SENATOR ELTON asked if local communities will have a diminished
voice in some areas because, with the removal of DEC from the
purview, their voices cannot speak in the same way they have in
the past to the DEC component.
MS. RUTHERFORD said that is a good question and acknowledged
that a lot of confusion remains on this issue. The elimination
of activities under the purview of DEC's air, land and water
quality standards are outside of the districts' ability to
develop local enforceable policies that increase the air, land,
and water quality standards in some fashion. However, this bill
does not in any way restrict incorporated Title 29
municipalities from developing ordinances that address that,
much like the CBJ has wetlands ordinances. Title 29
municipalities are completely free to develop ordinances that
deal with wetlands policies. The only distinction is that the
municipalities cannot then take those ordinances, embed them in
local enforceable policies that are part of the coastal
management program, and impose those on federal lands.
SENATOR ELTON said the wetlands policy issue is of special
concern to the CBJ. He sees this bill as preempting the tortuous
process the CBJ went through to establish wetland categories if
federal agencies are involved.
MS. RUTHERFORD said the CBJ adopted those policies through its
ordinance process so its Title 29 authorities are still
retained. The only thing the CBJ could not do under this bill is
to embed those air, land, and water quality standards. Many of
those might be siting standards, which are somewhat different
than those activities within the purview of the DEC standards.
The CBJ is not allowed to take those ordinances, if they are
pertinent to activities managed by DEC, and make them into local
enforceable policies. The only place where there may then be a
gap for Juneau would be if, in fact, there were federal lands
within its boundaries where the CBJ imposes the standard that
does capture an air, land, and water quality managed activity.
SENATOR ELTON asked, "...so, if, in fact, this was happening on
Tongass National Forest land, then Corps trumps municipal
ordinance?"
MS. RUTHERFORD said DEC trumps. DEC standards will continue to
apply to activities on federal lands within state boundaries and
the Outer Continental Shelf. A local district could not develop
a standard that goes beyond DEC's air, land, and water quality
standards.
SENATOR ELTON asked Ms. Rutherford if she has spoken to anyone
at the CBJ about that. He said her interpretation seems to be
"rosier" than the CBJ's interpretation.
MS. RUTHERFORD said she spoke to the planning director about two
hours ago and gave him her interpretation and drew his attention
to the section of the bill that she believes is applicable. She
suggested that he review that with the CBJ Department of Law and
offered to discuss it further.
SENATOR ELTON asked what Forest Practices Act activities would
be excluded from consistency review.
MS. RUTHERFORD said under the current program, the Forest
Practices Act standards and permit authorities are stand-alone.
Once those best management practices and standards embedded in
the act are met, the project is deemed consistent with coastal
management. She explained, "So, basically what we've done is
we've taken the Forest Practices Act model and simply imposed it
on the DEC air, land and water quality standards...."
SENATOR ELTON asked if the regimes for DEC and the Forest
Practices Act are essentially the same.
MS. RUTHERFORD said that is correct.
SENATOR ELTON asked Ms. Rutherford if she anticipates any
problems in looking at projects in total. He said one of his
concerns is that if the state uses a bifurcated DEC process and
then a consistency review process, it will only look at a piece
of the pie.
MS. RUTHERFORD said if DEC has a single agency review that only
regards its standards, it will make the sole determination.
However, normally there are multiple permits that include other
agencies and, because local enforceable policies will be able to
address activities of a project so that even if the DEC permit
is the only one, DEC will have to review for consistency with
the local enforceable policy. Amendment 1 clarifies that issue.
She said most of the time multiple permit agencies are involved.
SENATOR ELTON questioned whether an amendment has been drafted
to deal with the 90-day issue that is causing angst among many
communities.
MS. RUTHERFORD said she believes Senator Wagoner plans to
propose such an amendment. She said the Administration has taken
a look at it and is comfortable with it.
SENATOR ELTON asked Ms. Rutherford if she has spoken to anyone
from the municipalities who supports this legislation.
MS. RUTHERFORD said she has heard from a lot of the districts
that they are pleased with the progression from the original
legislation to the committee substitute but she does not believe
it is fair to say any of them are happy about the legislation.
They are comfortable with the current program. Conversely, she
has heard a lot of criticism from the development community
about the complexity and vagueness of the program and because
the DEC permitting process is lengthy and within the consistency
review. She said it is her opinion that while this bill neither
satisfies any of the districts nor satisfies all of the
development community, it is in the middle of the spectrum of
what is acceptable.
CHAIR OGAN said he believes that municipalities need to be
mindful of the fact that revenue sharing is decreasing and the
state's revenue stream will be diminished in the future.
MS. RUTHERFORD said that is an excellent point. One of the
criticisms by the development community is that new investment
has been slow in coming because the state is viewed as having a
very uncertain, lengthy and complex permitting system.
TAPE 03-34, SIDE B
MS. RUTHERFORD said the intent of this legislation is to
streamline that process to make it clearer and to provide a
timeline.
SENATOR ELTON commented that a lot of people listening to this
debate believe it involves municipalities against developers. He
said he does not believe any coastal communities want to delay
development projects. The coastal communities have been
especially "hammered" by changes in the fishing and timber
industries. He said he believes the bigger concern for
municipalities is to decide what kind of development they want.
They want to be involved in changes that fit their long-term
plans.
CHAIR OGAN suggested that there is already a process in place to
get permits through agencies so the CZM process is redundant.
MS. RUTHERFORD said she was not suggesting that the local
municipalities or coastal resource areas were opposed to
development. She said the development community is saying the
coastal management program is overly complex.
4:25 p.m.
SENATOR LINCOLN referred to an e-mail from the Port Graham
Village Council in which Chief Patrick Norman questioned whether
the language in Section 37 places a limit on villages. Chief
Norman wrote:
There is a limit placed on our villages that we could
only express our concerns only within 2 miles from our
village. Currently our village is within an area
meriting special attention under the Kenai Peninsula
Coastal Management Plan. The area encompasses all of
our subsistence use areas and this language will
restrict us way too much.
She asked Ms. Rutherford to speak to that concern.
MS. RUTHERFORD pointed out the only amendment to the existing
program in Section 37 changes the term "program" to "plan" so
this limitation is already in the existing program. It is only
pertinent to coastal resource service areas, not to incorporated
districts. Port Graham is located within the Kenai Peninsula
Borough.
SENATOR LINCOLN said the Port Graham Village Council reads that
to say it is outside of the two-mile limit. She asked if the
council will have a voice in the management plan.
MS. RUTHERFORD said she believes it does not affect them because
they are within an incorporated area, not a coastal resource
service area.
SENATOR LINCOLN referred to a letter from the village of
Mekoryuk. That letter expresses concern that this bill threatens
traditional subsistence hunting and fishing areas. The village
questions whether traditional primary governments are recognized
under this legislation.
MS. RUTHERFORD said there are several answers to that question.
First, unlike the original SB 143, the CS maintains the current
program, including the statewide standards that embody the
habitat standard. Therefore, a statewide habitat standard will
apply. Second, this bill makes no changes to the role of
traditional IRAs or traditional councils. She asked Mr. Galvin
to explain their current role.
MR. PATRICK GALVIN, former director of DGC, told members
Mekoryuk is located within a coastal resource service area. The
section Senator Lincoln referred to in the bill is current
statute, regarding the role the village plays in the planning
for that area. When the coastal resource service area is
developing a plan for the entire region, the tribal council is
specifically allowed to voice its desired enforceable policies
within the village. If a village has been incorporated, the
state recognizes the municipality - either the borough or the
city.
SENATOR LINCOLN asked if a village is not in a municipality or a
borough, the short answer is the traditional council will be
recognized. She asked if that is addressed in this bill.
MR. GALVIN said that is correct. He noted the language Senator
Lincoln read from the letter is the section in current statute
that recognizes the traditional council as the decision making
body.
CHAIR OGAN noted that he planned to hold the bill in committee
for another hearing to accommodate the people who want to
testify.
SENATOR BEN STEVENS referred to Section 12 on page 8 and asked
if under the new proposals there will be a plan review every ten
years, while the existing language has no review process.
MS. RUTHERFORD said that languages that plans be reviewed and
resubmitted every ten years. She explained there is no such
requirement under the current program.
SENATOR BEN STEVENS asked if there has been any coastal
management plan review since 1981.
MS. RUTHERFORD said no review requirement exists but many of the
districts updated their plans multiple times at their own
request since they were initially implemented.
SENATOR BEN STEVENS said he applauds Ms. Rutherford's attempt to
rewrite definitive standards for review and approval.
SENATOR WAGONER moved to adopt Amendment 2, which reads as
follows.
A M E N D M E N T 2
On Page 15, line 3
Insert:
(4) if the applicant fails to respond in writing
to a written request for additional information within
14 days of receipt of such request;
SENATOR ELTON objected for the purpose of discussion.
MS. RUTHERFORD said the Administration is comfortable with
Amendment 2. During the 90-day review, if an applicant fails to
respond in writing to a request for information within 14 days,
it allows the timeline to be tolled until the applicant
responds. In other words, if an applicant chooses to ignore a
request for additional information, the permit will not
automatically be deemed consistent.
CHAIR OGAN noted that an Alaska Municipal League representative
nodded affirmatively in support of Amendment 2.
SENATOR ELTON said the amendment may need to go a step further
and say if the applicant fails to respond completely.
MS. RUTHERFORD said, in her opinion, the bill already allows
inherent discretion to determine whether a response is adequate
to the request. This simply allows the agency to toll it should
it choose to.
SENATOR ELTON suggested the Chair speak to the Department of Law
about that matter. He then asked if "tolled" means a deadline
will be suspended until a response is received.
MS. RUTHERFORD said that is correct.
SENATOR ELTON questioned how that will work since the amendment
is placed in the legislation so that the 90-day timeline is
removed.
MS. RUTHERFORD said under Section 22(o)(2), an applicant can ask
that the clock be held while additional information is being
prepared. The project does not have to be terminated and the
process restarted. The new section (4) just allows the agency
to also stop the clock so that the entire review does not have
to be restarted if an applicant has not provided adequate
information.
CHAIR OGAN asked if this can be used in a dilatory way if the
amendment is adopted.
MS. RUTHERFORD said she supposes it is possible that DNR could
choose to use it in some inappropriate fashion but the reality
is everyone is trying to get project reviews off of their desks
as quickly as possible to prevent a backlog.
CHAIR OGAN asked, using the "evil commissioner theory," whether
protections can be put into that bill so that theory does not
play out and delay projects.
MS. RUTHERFORD said that same commissioner could determine every
project inconsistent and that would be worse than tolling a
project so the danger exists anyway.
SENATOR ELTON said it seems clear to him that the amendment does
not address tolling. The language in (o) on page 14 says the
time limitations in (n) of this section do not apply to a
consistency review. It does not say the time limitations are
suspended or tolled. The 90-day provision is in (n).
MS. RUTHERFORD said the intent was to have (2) and (3) be a toll
but she would look into it.
SENATOR BEN STEVENS said according to the language on page 12,
lines 28-31, it says the project applicant, the resource agency
or the affected coastal resource district can make the inquiry
for the 14-day response. He asked how many times they can do
that.
MS. RUTHERFORD said she believes the reference to (d)(3) is the
request for an elevation. If someone does not like the decision,
that person has the opportunity for a hearing to discuss
concerns. It is a process embedded in the program to hopefully
prevent litigation.
CHAIR OGAN noted he would leave Amendment 2 on the table to
await an answer to Senator Elton's question.
CHAIR OGAN announced a brief at-ease. When he reconvened the
meeting, he announced the committee would next hear SB 88 and
would not take up SB 56 today due to lack of time.
SB 88-FOREST RESOURCES & PRACTICES STANDARDS
MR. BRIAN HOVE, staff to Senator Seekins, sponsor of SB 88, gave
the following sponsor statement.
This bill revises the riparian management standards of
the Forest Resources Practices Act (FRPA) for Region
III by strengthening protection for fish habitat and
water quality in a manner that continues to support
both the timber and fishing industries.
The current standards for Region III were adopted as
an interim measure in the 1990 revision of the Act.
Under these standards, harvesting can occur up to the
bank of anadromous waters on both public and private
land under some conditions. With the proposed bill,
all anadromous and high-value resident fish waters are
classified and riparian standards are established for
each classification.
The requirements are tailored to the characteristics
and fish habitat needs of each stream type. A no-
harvest buffer will be required on most anadromous and
high-value resident fish waters. However, along
glacial rivers where some of the most valuable timber
occurs, the standards allow harvest of up to half the
large white spruce in the landward half of the buffer.
This allows landowners to capture some of the economic
value within the riparian areas while keeping enough
large trees to provide woody debris.
This bill is not a wholesale revision of the Act. It
has substantive changes for riparian management
standards applying to Region III only. Other technical
revisions include changes to the statewide
nomenclature for water body classes to prevent
confusion between water body types in different
regions. The bill also moves definitions of regional
boundaries from the regulations to the Act and makes a
minor change to the regional boundary on the Kenai
Peninsula to better match the difference between
forest types. Most forestland in the affected area is
in federal ownership, so there will be minimal impact
on other landowners.
SB 88 helps ensure that the FRPA continues to be
certified for compliance with federal Clean Water Act
and coastal zone management requirements. This means
that the Act continues to provide 'one-stop shopping'
for the timber industry with respect to state and
federal non-point source pollution and coastal
management standards.
This bill is founded on the best science available
including an extensive review of existing research and
recommendations of an interdisciplinary Science &
Technical Committee. The committee included
experienced field staff from the state resource
agencies and private sector as well as the University
of Alaska and federal scientists.
MR. HOVE offered to answer questions and noted Mr. Jahnke was
present and Marty Freeman was on line to answer questions.
CHAIR OGAN asked Mr. Jahnke to testify.
MR. JEFF JAHNKE, Director of the Division of Forestry,
Department of Natural Resources (DNR) and the presiding officer
for the Board of Forestry, gave the following background on how
this legislation was developed.
This bill is a response to a Board of Forestry request
to review the Forest Practices Act in 1996. We began
that review in Region 1, which is the coastal region
that encompasses most of coastal Alaska. This is the
second step. That actually resulted in a change to the
Forest Practices Act in 1999.
The second step of that - we moved to the Interior and
this review was completed...in 2001. This is the
second session that this bill has been...brought
forward. We really thank Senator Seekins for
sponsoring this bill.
CHAIR OGAN commented this bill is the result of a consensus that
was worked out.
MR. JAHNKE noted members of the fishing industry, fish, wildlife
and timber scientists, and the environmental community agreed
upon this bill. He continued:
This bill was developed the same way the Region 1 was.
We started with a science committee basically that put
together the science of catching the fisheries
management and riparian zone management. Following
that, an implementation group was put together to look
at the results of a science group to make sure that
things could be done on the ground - that it would
actually work. In following that, of course the Board
of Forestry reviewed it at length and what's before
you is pretty much the result of all three reviews.
A couple of important points - it's a science-based
bill. It's a science-based proposal. It has very good
scientific background and it has, like I said earlier,
[the support] of a broad range of industry, fisheries,
environmental groups, the Board of Forestry, etcetera.
This act does three things to help ensure the goal of
the Forest Practices Act. First it provides adequate
protection for fish habitat in water quality and
supports the continuation of healthy timber and the
fishing industry. Second it helps to ensure that the
Forest Practices Act meets the water quality
requirements in the Clean Water Act in the coastal
zone management act and that's very important. The
third item that's probably worth mentioning is this
bill is, as you heard Marty mention earlier, this bill
is a one-stop shop for forestry activities. It meets
the requirements of the coastal zone, if in fact they
meet forest practices, and these changes help to
ensure that that continues to be the case.
Having said that, with the Chair's permission, I'd ask
Marty to go into the specifics and then we can take
questions then or we can do it now.
CHAIR OGAN noted that he does not plan to move SB 88 out of
committee today and that he would like to give priority to the
people who signed up to testify.
SENATOR ELTON asked if SB 88 is a replica of last session's HB
131.
MR. JAHNKE said it is.
CHAIR OGAN took public testimony.
MR. ALBERT PAGH told members he and his son have owned and
operated 4 Star Lumber in Fairbanks for 33 years. His father had
portable mills so he spent his childhood days living in the
forest. He said he can see no reason for this legislation. If
the purpose of SB 88 is to reduce erosion, he has observed that
if trees are left up to a stream bank, the soil under them is
worse off. The stream undercuts the tree, pulling the back roots
and a lot of soil from the bank. When trees are cut the sun
exposure allows new plants to grow, establishing root systems
and stabilizing the bank. [Much of Mr. Pagh's testimony was
inaudible due to transmission problems.]
MR. RICK SMERIGLIO of Seward stated support for SB 88. He has
been a member of the Board of Forestry for over five years and
watched this bill develop from an idea. He thanked the agencies,
particularly the Division of Forestry and Alaska Department of
Fish and Game (ADF&G), for all of the work they did. Local
residents of the Interior had an opportunity to provide input.
He said HB 131 came close to passing the Senate last year but
the Senate ran out of time. He said most of the testimony the
committee will hear will be supportive of SB 88. He pointed out
the Board of Forestry is on record in support of this
legislation. The requirement to have buffer zones has gained
acceptance in Southeast Alaska because they protect fish and
other riparian values. He believes it is a good idea to apply
the buffer zone requirement to northern waters. He said the
Board of Forestry has taken tours of the affected area in the
Interior. He has seen areas that have been logged to the stream
bank and areas with buffer zones. He believes the areas with
buffer zones are better served. He stated support for SB 88 and
asked members to take action on it as soon as possible.
CHAIR OGAN agreed that buffer zones are good. He said years ago
he was concerned about the woody debris in a creek behind his
home but was told by ADF&G that it provides good fish habitat.
MR. ERIC PYNE told members he has been involved in the timber
industry in Fairbanks since 1979.
CHAIR OGAN called an at-ease to address teleconference
transmission problems.
MR. PYNE continued his testimony. He has been involved in the
planning process. During that process, ADF&G stated the buffer
zones would simply be a starting point and not an end-all. The
Division of Forestry assured him that the buffer zones would be
in regulation and not just a starting point. As long as that is
the fact, he supports the bill as written.
MS. LESLIE GUSTAFSON, Salcha, said she is an owner of a timber
harvesting business. Her husband has harvested on the Tanana
River and lived there since 1968. They have been watching this
bill progress. They support SB 88 as is. She explained her
concern is that different segments have come to the table; she
does not want to see special interest groups come along and stop
logging. She would like to see regulations in place so that
loggers do not have to address each and every harvest or
redefine plans. She said she is a board member of the Alaska
Forest Association. She believes SB 88 will provide consistency
across the state.
MR. ROBERT OTT, Tanana Chiefs Conference (TCC), told members
that TCC supports SB 88. This legislation represents a lot of
work by many different groups. It protects fish habitat and
water quality standards mandated by the Forest Practices Act.
TAPE 03-35, SIDE A
MR. JAMES V. DREW, testifying from Fairbanks, said he recommends
favorable action by the legislature on SB 88. He said he has
watched the changes in the forestry issues in Alaska over 20
years as director of the Agriculture and Forestry Experiment
Station at the University of Alaska. He has also served as a
member and chair of the Alaska Reforestation Council. He
explained that riparian areas in Alaska's forests are of
interest to foresters, fishermen, and wildlife managers. The
lack of reasonable standards for forest management within these
riparian areas has led to inefficiencies in managing these areas
for wildlife habitat and timber production. SB 88 was developed
from input from two different working groups: the
interdisciplinary science and technical committee; and the
implementation committee, which involved a lot of people and
discussion. The Board of Forestry established both of those
committees. He said the bottom line is that SB 88 meets habitat
requirements for fish and allows limited harvesting of white
spruce and buffer strips to capture some of the economic values
within riparian zones. Last year, HB 131 underwent considerable
review by the natural resources committee of the Fairbanks
Chamber of Commerce. That committee recommended the bill. He
strongly supports SB 88.
MS. JAN DAWE, Alaska Boreal Forest Council director, stated
support for SB 88 because it represents such an exemplary
process. It provides industry and the entire community with the
confidence that the Forest Practices Act is being competently
administered for conditions specific to the region north of the
Alaska Range.
MR. CHRIS STARK, a fisheries biologist on the Board of Forestry,
told members he is also representing the environmental community
on the Tanana Valley State Forest. He said he is also
representing and working for the Bering Sea Fisheries
Association, Yukon River Fisheries Development Association, and
a few other small non-profit organizations. He said his
associations are happy to support this bill primarily because it
is scientifically based and establishes a buffer zone. However,
the environmental community would like a larger buffer zone
requirement. SB 88 was a good compromise.
CHAIR OGAN announced that with no further participants, public
testimony was closed. He said that normally he would hold the
bill in committee longer but this bill was reviewed by both
bodies last year so he would be willing to move SB 88 from
committee today.
SENATOR SEEKINS said this bill made it through the House and
Senate committees last year, but in the rush to adjourn, it was
not scheduled for a floor vote in the Senate. It had almost
unanimous support throughout the entire process. The concerns
expressed are questions that need to be addressed after more
information is gathered, such as harvesting trees close to a
stream bank. He said the intent of the bill is to provide for
planned, orderly growth and development in concert with the
principles of good stewardship. His intent is to build the
timber industry in a responsible manner.
SENATOR DYSON moved SB 88 from committee with individual
recommendations and attached fiscal note(s).
SENATOR LINCOLN objected for the purpose of discussion.
SENATOR SEEKINS said that rather than hold the bill in
committee, he is willing to look at revisions to the legislation
farther down the line.
SENATOR WAGONER expressed concern about the word "prudent" on
page 2, line 31, and asked who will determine what is or isn't
prudent.
MR. JAHNKE informed members that an intense discussion took
place about the word "prudent" when Region 1 was reviewed.
"Prudent" is determined by the Division of Forestry in
consultation with the other agencies.
SENATOR LINCOLN noted the word "prudent" is defined on page 3,
line 26. She then noted that members were told that SB 88 is
identical to HB 131. She asked if HB 131 was amended when it
went through the legislative process last year.
MR. JAHNKE said it was not amended.
SENATOR LINCOLN pointed out the definition of "prudent" in the
bill is not helpful because the definition uses terminology that
is not firm. She then withdrew her objection to moving SB 88
from committee, therefore the motion carried.
With no further business to come before the committee, CHAIR
OGAN adjourned the meeting.
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