Legislature(2017 - 2018)BUTROVICH 205
01/31/2017 01:30 PM Senate TRANSPORTATION
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| Audio | Topic |
|---|---|
| Start | |
| Presentation: Nepa Permitting Process | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
ALASKA STATE LEGISLATURE
SENATE TRANSPORTATION STANDING COMMITTEE
January 31, 2017
1:31 p.m.
MEMBERS PRESENT
Senator Bert Stedman, Chair
Senator Anna MacKinnon
Senator Click Bishop
Senator David Wilson
Senator Dennis Egan
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
PRESENTATION: NEPA PERMITTING PROCESS
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
LANCE MEARIG, Chief Engineer
Design & Engineering Services
Department of Transportation and Public Facilities (DOTPF)
Juneau, Alaska
POSITION STATEMENT: Presented information on the NEPA permitting
process.
TAYLOR HORNE, Environmental Program Manager
Department of Transportation and Public Facilities (DOTPF)
Anchorage, Alaska
POSITION STATEMENT: Presented information on the NEPA permitting
process.
JEFF BRUNO, Acting Executive Director
Office of Project Management and Permitting (OPMP)
Department of Natural Resources
Anchorage, Alaska
POSITION STATEMENT: Presented information on permitting large
projects in Alaska.
ACTION NARRATIVE
1:31:43 PM
CHAIR BERT STEDMAN called the Senate Transportation Standing
Committee meeting to order at 1:31 p.m. Present at the call to
order were Senators Wilson, MacKinnon, Egan, and Chair Stedman.
Senator Bishop arrived shortly thereafter.
^PRESENTATION: NEPA PERMITTING PROCESS
1:32:29 PM
CHAIR STEDMAN announced that the only order of business would be
a presentation on the National Environmental Policy Act (NEPA)
permitting process and its effects on development by the
Department of Transportation and Public Facilities and the
Department of Natural Resources. He requested that the
departments provide ideas for shortening and reforming the NEPA
permitting process. He announced the arrival of Senator Bishop.
1:33:19 PM
LANCE MEARIG, Chief Engineer, Design & Engineering Services,
Department of Transportation and Public Facilities (DOTPF),
presented information on the NEPA permitting process. He began
by highlighting Brett Nelson, an employee of DOTPF. Mr. Nelson
works as a Northern Region Environmental Manager and handles
some of the NEPA process work.
MR. MEARIG said his presentation will review DOT's mission to
"Keep Alaska moving through service and infrastructure." He said
he will address DOT's statutory responsibilities and explain its
relationship with the federal government and its core services.
He pointed out that most of the capital funding comes from the
Federal Highway Administration (FHA) and the Federal Aviation
Administration (FAA) with some from the Transit Administration.
The total dollar amount coming to Alaska each year is $750
million. He said he would describe Alaska's transportation
program.
1:36:11 PM
He related that he will discuss the NEPA process and flow chart
and some of the causes for permitting delays. He will address
ideas for streamlining the permitting process and an overview of
the project development process.
1:36:51 PM
MR. MEARIG showed a slide of federal laws and executive orders
affecting DOT projects over a long period of time. He emphasized
the complexity involved in project development.
1:37:29 PM
SENATOR BISHOP asked whether asphalt knows how many permits are
needed for one lane mile.
MR. MEARIG said it does not.
SENATOR BISHOP asked which of these federal law or agencies does
not add value to a project. He provided an example of how much a
paving project cost in 1973-4 in Healey - $1.7 million for 23
lane miles. He stated, "You can barely get one lane mile of
asphalt for that price today, and herein lies the problem." He
supported getting rid of any laws that are not applicable and
contacting the Alaska delegation for some relief.
CHAIR STEDMAN thought that would be addressed later in the
meeting.
1:39:04 PM
MR. MEARIG explained the NEPA process from proposed federal
action through the steps needed to start a project. He discussed
the process for highway projects and aviation projects, as well
as the paths of environmental assessments and environmental
impact statements.
1:42:17 PM
MR. MEARIG turned to potential causes of delay. He said they can
happen prior to NEPA approval, concurrently with it, or after
NEPA approval. He showed a typical list of approval levels
required for large projects.
1:45:52 PM
TAYLOR HORNE, Environmental Program Manager, Department of
Transportation and Public Facilities (DOTPF), presented
information on the NEPA permitting process. He presented ideas
for streamlining environmental permitting: NEPA assignment
program, Section 404 wetlands permitting, and Endangered Species
Act and Marine Mammal Preservation Act (ESA/MMPA)
authorizations.
1:49:23 PM
MR. HORNE described more ideas for streamlining environmental
permitting: Section 4 (f)/Section 106: relax the requirement to
offer historic bridges for sale before demolition.
SENATOR EGAN requested an example. He recalled getting rid of
the old Douglas Bridge and asked if it complied with Section 4
(f)/Section 196.
MR. HORNE offered to get back to Senator Egan. He said he knew
of one recent example.
SENATOR EGAN said there was one in Gustavus.
1:52:00 PM
MR. HORNE spoke of the example for streamlining environmental
permitting regarding bald eagle permits.
1:52:46 PM
MR. HORNE discussed the 2015 FAST Act, the most recent national
transportation bill. It includes many project delivery reforms.
1:53:52 PM
SENATOR BISHOP said he was told that with 100 percent federal
funds, projects typically took six years to go through the
permitting process. He asked if that is accurate.
MR. HORNE said it depends on location and the NEPA categories of
exclusion. The vast majority of DOT projects take a year.
1:55:01 PM
MR. HORNE explained the categorical exclusions. On average there
are 190 highway project starts and 97 percent are categorical
exclusions (CE) and need environmental permits. Of those, 91
percent are programmatically approved in the region. The average
CE approval time is 112 days. Environmental Assessments (EAs)
and Environmental Impact Statements (EISs) are rare, but more
complicated.
1:57:00 PM
MR. MEARIG explained the bridge permitting process. Bridge
projects require permitting if they are constructed across
navigable waters and are rare. There was only one such permit in
the last 5 years. The Federal Highway Administration is able to
grant 144(c) exemptions, so the state does not have to go
through the permitting process. He said there have been some
delays due to normal project delays, such as scope changes.
1:59:25 PM
MR. MEARIG discussed airport permitting. He said the FAA leads
all the agency coordination and approves all environmental
documents, although DOT prepares some documents. Airport
permitting is similar to highway permitting. The FAA cannot
delegate NEPA responsibilities to a state because most airports
in the Lower 48 have individual owners. Alaska is the only state
that operates over 200 airports.
2:00:54 PM
SENATOR EGAN asked noted Juneau has a municipal-owned airport
and asked how it fits into the process.
MR. MEARIG said the environmental process for airports is
similar to the highway permitting process.
SENATOR EGAN said Juneau does their own environmental processing
through the FAA.
2:02:19 PM
SENATOR MACKINNON asked whether the department has requested an
exclusion because of all of Alaska's state-supported airports.
MR. MEARIG did not think so.
SENATOR MACKINNON suggested the Transportation Committee and DOT
ask Alaska's delegation if DOT could divert and handle smaller
projects for permitting for cost savings, considering Alaska has
unique numbers and geography. She requested Chair Stedman make
the request.
2:03:54 PM
CHAIR STEDMAN asked why DOT has not considered this already.
MR. MEARIG agreed to provide that information.
2:04:37 PM
MR. HORNE explained wetlands permitting and mitigation. The
United States Army Corps of Engineers (USACE) regulations
requires DOT to avoid, minimize, and mitigate project impacts.
Sometimes no mitigation is required. He listed the options when
mitigation is required: mitigation banks, in-lieu fee providers,
or permittee responsible mitigation. He explained the process of
each option. He provided an example of the mitigation process
regarding failing culverts. He noted the cost of mitigation
varies based on the number of acres impacted, the quality and
function of wetlands, the price per mitigation credit, and the
location. He said it is $2,000 to $10,000 per credit in rural
areas and $20,000 to over $100,000 per credit in urban areas.
2:08:03 PM
CHAIR STEDMAN stated that it seems problematic from many angles,
and he called it virtual extortion.
SENATOR EGAN agreed. He asked if the mitigation parameters are
different for a state constructing an airport in Angoon versus
in Juneau.
2:09:18 PM
MR. HORNE asked if Senator Egan is referring to mitigation
banks.
SENATOR EGAN said yes.
MR. HORNE explained that in the ASACE regulations there are
preferences for wetlands permitting. First, the builder must
look to see if there is a mitigation bank in the area that can
sell credits.
SENATOR EGAN asked who does it.
MR. HORNE said the applicant does.
SENATOR EGAN asked whether the FAA determines the dollar amount.
MR. HORNE explained that the price per credit is determined by
the mitigation provider - a third party entity - and is based on
the market. In the Anchorage area there are multiple providers;
in large portions of Alaska there is only one provider in the
market.
2:11:34 PM
SENATOR MACKINNON asked if it is fair to say that the mitigation
dollars are different, but the parameters for applying for the
permitting are somewhat the same. For example, if mitigations
are required in different areas, they would be applying similar
criteria, but depending on the sensitivity of the land, the
dollars could be higher.
MR. HORNE clarified that the regulations are the same, but the
cost can change depending on location.
2:12:25 PM
CHAIR STEDMAN suggested the committee revisit the topic of
mitigation because of concern by the public over unfair market
price. It has been termed "legal extortion." He said the
committee will hear this topic as a separate subject.
SENATOR MACKINNON appreciated that the mitigation bank and in-
lieu fee provider are easy to manage, however, she said the
qualified fees charged are federally reimburse making it
uneconomical because the federal government is driving costs up.
It is especially onerous for private citizens.
2:14:08 PM
SENATOR BISHOP gave an example of an acre in Prudhoe Bay
(Deadhorse) where people have been charged $40,000. He
appreciated Chair Stedman's willingness to return to the topic
for a deeper discussion.
CHAIR STEDMAN added that it is a real point of agitation for
small developers. There is concern over who controls the
mitigation banks and what will happen in the future.
SENATOR MACKINNON wondered if the courts are involved in some of
the awards and may be driving costs up.
2:15:26 PM
MR. MEARIG thanked the committee and offered to answer
questions.
2:15:42 PM
SENATOR BISHOP brought up a pet peeve: the Stormwater Pollution
Prevention Plan (SWPPP) permitting under the Clean Water Act. He
maintained that it should not be a blanket approach on every
project and is a waste of dollars.
2:17:01 PM
SENATOR MACKINNON asked if all agriculture in the Lower 48 is
exempt from SWPPP.
MR. HORNE offered to find out.
CHAIR STEDMAN thanked the presenters. He said the topic of
mitigation will be addressed further.
2:18:13 PM
JEFF BRUNO, Acting Executive Director, Office of Project
Management and Permitting (OPMP), Department of Natural
Resources, presented information on permitting large projects in
Alaska.
2:19:27 PM
At ease
2:21:53 PM
CHAIR STEDMAN noted technical difficulties.
MR. BRUNO reported that his office is responsible for
coordinating large-scale projects through all phases of
development. It coordinates state permits and also represents
the state within the cooperating agency status of the National
Environmental Policy Act (NEPA). He said he will discuss the
permitting process, as well as some of the potential hurdles and
pitfalls that exist along the way. He noted that DNR projects
are very different than DOT projects.
2:24:13 PM
He showed a graph of the potential timeline for a mining project
where nine years are spent collecting data or in the permitting
process. He stressed that collecting environmental baseline data
is the foundation of a good project and often mistakes are made,
sometimes because there are not clear expectations or too many
changes are made. He suggested efficiencies can be created by
first communicating with the Office of Project Management and
Permitting (OPMP).
2:26:20 PM
MR. BRUNO explained how OPMP works during every phase of the
project to integrate the federal, state, and local permitting
processes so they run concurrently. His slide showed a parallel
process when everyone works together on permitting. He
emphasized that later in the process if the design is changed,
problems occur and it can be more expensive. He pointed out that
the state and federal governments can issue permits at the same
time. He said it is important for the public's understanding if
the permits are coordinated first and then communicated.
2:29:09 PM
MR. BRUNO showed a collection of the main permitting authorities
of state and federal agencies. The NEPA process is triggered
when the project requires federal agency involvement.
He noted a complication because each federal agency has a
different set of values and perspective. How NEPA is interpreted
is left up to the lead federal agency, which is key in making
decisions and preventing delays. The agencies are getting better
in cooperating with each other.
2:30:59 PM
MR. BRUNO turned to a graph on the NEPA process for the
development of an EIS.
2:33:01 PM
He showed a map of a proposal track for an EIS. The EIS process
can take several years and be very expensive. It can cost
hundreds of millions of dollars for baseline data collection and
NEPA, federal, and state permitting. There are no guarantees
that the permitting process will be legally defensible. He
pointed out that OPMP works with the federal agencies in order
to gather information and facilitate a smooth process.
2:34:03 PM
MR. BRUNO turned to the state permitting process for a large
mine permit. He noted the complexity of the process. He said
OPMP can assist in coordinating the permits.
2:36:03 PM
SENATOR MACKINNON asked about the Health and Social Service
aspect and the Health Impact Assessment (HIA). She inquired what
measurable criteria is being used.
2:36:36 PM
MR. BRUNO said OPMP developed HIA out of the NEPA process. The
Department of Health and Social Services (DHSS) developed a team
to analyze health impacts of a project and how they can be
mitigated. He noted DHSS has a tool kit on their website
regarding health impacts on projects.
2:37:52 PM
MR. BRUNO explained that the NEPA process and permits have the
longest lead time. There must be a development of an EIS, which
can take up to ten years. Defined steps are required for an EIS,
but the processes are not defined and are inconsistent. Federal
agencies have different methodologies. He gave an example of
federal agency inconsistencies related to ConocoPhillips.
2:40:17 PM
MR. BRUNO said OPMP recommends early consultation with
regulating agencies to help assure correct baseline information
is collected. He encouraged applicants to talk to OPMP to meet
with regulators for clarification.
2:43:16 PM
He addressed litigation, which can cause severe time delays in
many ways. He used Kensington Mine as an example. Sometimes
litigation can make future decisions or processes more efficient
or transparent, depending on the situation and outcome. The fear
of litigation can also add to timelines.
2:45:51 PM
MR. BRUNO stressed the importance of early coordination. Project
proponents should start a dialog with state, federal, and local
entities early in the process to set clear expectations. He
listed some of the suggestions for avoiding the pitfalls of
permitting. He said general permits can streamline the process.
Presidential, executive, and administrative orders can provide
efficiencies and "fast track" can also reduce timelines.
He noted that the Council for Environmental Quality is the
federal regulator that is in charge of NEPA and is responsible
for providing guidance. Right now, there is a lot of room for
interpretation. He brought up the cost of mitigation for wetland
permitting. He said that DNR is in the process of developing a
litigation bank that allows state resources to be available for
purposes of mitigation.
2:50:55 PM
CHAIR STEDMAN said the committee would address mitigation again
at a future date.
2:51:31 PM
There being no further business to come before the committee,
Chair Stedman adjourned the Senate Transportation Standing
Committee at 2:51 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| NEPA presentation.pdf |
STRA 1/31/2017 1:30:00 PM |
|
| Permitting large project in AK.pptx |
STRA 1/31/2017 1:30:00 PM |