HB 401: "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."
00HOUSE BILL NO. 401 01 "An Act establishing a procedure for review of proposed projects under the 02 Alaska coastal management program, and relating to petitions for compliance with 03 and enforcement of district coastal management programs under that program and 04 to the disposition of those petitions." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. AS 46.40.040 is amended to read: 07 Sec. 46.40.040. DUTIES OF THE ALASKA COASTAL POLICY COUNCIL. 08 Through the public hearing process and the recording of the minutes of the hearings, 09 the Alaska Coastal Policy Council shall 10 (1) by regulation, adopt under the provisions of AS 44.62 ( [THE] 11 Administrative Procedure Act) [(AS 44.62) NOT LATER THAN APRIL 15, 1978,] 12 for the use of and application by coastal resource districts and state agencies for 13 carrying out their responsibilities under this chapter, guidelines and standards for 14 (A) identifying the boundaries of the coastal area subject to the
01 district coastal management program; 02 (B) determining the land and water uses and activities subject 03 to the district coastal management program; 04 (C) developing policies applicable to the land and water uses 05 subject to the district coastal management program; 06 (D) developing regulations applicable to the land and water uses 07 subject to the district coastal management program; 08 (E) developing policies and procedures to determine whether 09 specific proposals for the land and water uses or activities subject to the district 10 coastal management program shall be allowed; 11 (F) designating and developing policies for the use of areas of 12 the coast which merit special attention; and 13 (G) measuring the progress of a coastal resource district in 14 meeting its responsibilities under this chapter; 15 (2) develop and maintain a program of technical and financial 16 assistance to aid coastal resource districts in the development and implementation of 17 district coastal management programs; 18 (3) undertake review and approval of district coastal management 19 programs in accordance with this chapter; 20 (4) initiate a process for identifying and managing uses of state concern 21 within specific areas of the coast; 22 (5) develop procedures or guidelines for consultation and coordination 23 with federal agencies managing land or conducting activities potentially affecting the 24 coastal area of the state; 25 (6) by regulation, establish a consistency review and determination 26 or certification process that conforms to the requirements of AS 46.40.096. 27 * Sec. 2. AS 46.40 is amended by adding a new section to read: 28 Sec. 46.40.096. CONSISTENCY REVIEWS AND DETERMINATIONS. (a) 29 The council shall, by regulation, establish a consistency review and determination 30 process that conforms to the requirements of this section. 31 (b) If a consistency review is not subject to AS 44.19.145(a)(11) because the
01 project for which a consistency review is made requires a permit, lease, or 02 authorization from only one state agency, that state agency shall coordinate the 03 consistency review of the project. The state agency shall coordinate the consistency 04 review according to the requirements of the regulations adopted by the council under 05 this section. 06 (c) The regulations adopted by the council under this section must include 07 provisions for public notice and provide the opportunity for public comment. The 08 regulations adopted under this subsection may make distinctions relating to notice 09 based upon differences in project type, anticipated effect of the project on coastal 10 resources and uses, other state or federal notice requirements, and time constraints. 11 However, a notice given under this subsection must contain sufficient information, 12 expressed in commonly understood terms, to inform the public of the nature of the 13 proposed project for which a consistency determination is sought, and must explain 14 how the public may comment on the proposed project. 15 (d) In preparing a consistency review and determination for a proposed project, 16 the reviewing entity shall 17 (1) request consistency review comments for the proposed project from 18 state resource agencies, affected coastal resource districts, and other interested parties 19 as determined by regulation adopted by the council; 20 (2) prepare proposed consistency determinations; 21 (3) coordinate subsequent reviews of proposed consistency 22 determinations prepared under (2) of this subsection; a subsequent review of a 23 proposed consistency determination under this paragraph 24 (A) is limited to a review by the state resource agencies; and 25 (B) may occur only if requested by 26 (i) the project applicant; 27 (ii) a state resource agency; or 28 (iii) an affected coastal resource district; 29 (4) after providing an opportunity to file a petition for review under (e) 30 of this section, render the final consistency determination and certification. 31 (e) Under regulations adopted by the council, the reviewing entity shall provide
01 opportunity to file a petition under AS 46.40.100(b)(1) seeking a review by the council 02 of the proposed consistency determination prepared under (d)(2) of this section. The 03 regulations must include provisions that establish a reasonable limit on the time that 04 may elapse between the completion of the proposed consistency determination prepared 05 under (d)(2) of this section and a hearing to consider a petition filed under this 06 subsection. Under this subsection, 07 (1) the right to file a petition is limited to 08 (A) each of the following parties, but only if the party had 09 submitted comments during the period for receipt of public comments 10 established under (c) of this section: 11 (i) an affected coastal resource district; 12 (ii) a state agency; or 13 (iii) a citizen of an affected coastal resource district; or 14 (B) the project applicant; and 15 (2) the reviewing entity 16 (A) may not accept a petition filed under this subsection if a 17 final consistency determination has been rendered under (d)(4) of this 18 subsection; 19 (B) may accept a petition filed by a party identified in (1)(A)(i), 20 (1)(A)(ii), or (1)(B) of this subsection only if a party had requested a review 21 of the proposed consistency determination prepared under (d)(2) of this section; 22 (C) may accept a petition filed by a party identified in 23 (1)(A)(iii) of this subsection without regard to whether a party had requested 24 a review of the proposed consistency determination prepared under (d)(2) of 25 this subsection. 26 (f) For a consistency review subject to AS 44.19.145(a)(11), the council may, 27 by regulation, limit consideration of a petition under (e) of this section seeking review 28 of a proposed consistency determination to the extent necessary to meet the deadlines 29 set by federal law for timely submission of a federal consistency determination as 30 allowed by 16 U.S.C. 1456. 31 (g) In this section,
01 (1) "affected coastal resource district" means a coastal resource district 02 in which a project is proposed to be located or which may experience a direct and 03 significant impact from a proposed project; 04 (2) "reviewing entity" means the 05 (A) office, for a consistency review subject to 06 AS 44.19.145(a)(11); 07 (B) state agency identified in (b) of this section, for a 08 consistency review not subject to AS 44.19.145(a)(11). 09 * Sec. 3. AS 46.40.100(b) is amended to read: 10 (b) A party that is authorized under (g) of this section may file a petition 11 showing that a district coastal management program is not being implemented, 12 enforced, or complied with. On receipt of a petition [OF A COASTAL RESOURCE 13 DISTRICT, A CITIZEN OF THE DISTRICT, OR A STATE AGENCY, SHOWING 14 THAT A DISTRICT COASTAL MANAGEMENT PROGRAM IS NOT BEING 15 IMPLEMENTED, ENFORCED OR COMPLIED WITH], the council, after giving 16 public notice in the manner required by (f) of this section, shall convene a 17 [PUBLIC] hearing to consider the matter. A hearing called under this subsection shall 18 be held in accordance with regulations adopted by the council [THE 19 ADMINISTRATIVE PROCEDURE ACT (AS 44.62)]. After hearing, 20 (1) if the petition was filed under AS 46.40.096(e) and the council 21 finds that 22 (A) the office or the state agency responsible for 23 coordinating the consistency review has not fairly considered the 24 petitioner's comments in the development of a proposed consistency 25 determination, the council shall remand the proposed consistency 26 determination to the office, or to the state agency responsible for 27 coordinating the consistency review, for preparation of a revised proposed 28 consistency determination that gives fair consideration to the petitioner's 29 comments; 30 (B) a remand of the consistency determination is not 31 required under (A) of this paragraph, the council shall dismiss the petition;
01 (2) if the petition was not filed under AS 46.40.096(e), the council 02 may order that the coastal resource district or a state agency take any action [WHICH] 03 the council considers necessary to implement, enforce, or comply with the district 04 coastal management program. 05 * Sec. 4. AS 46.40.100(c) is amended to read: 06 (c) Except when a petition has been filed under AS 46.40.096(e), in [IN] 07 determining whether an approved district coastal management program is being 08 implemented, enforced, or complied with by a coastal resource district that [WHICH] 09 exercises zoning authority or controls on the use of resources within the coastal area, 10 the council shall find in favor of the district if 11 (1) zoning or other regulations have been adopted and are being 12 enforced; 13 (2) variances are being granted according to procedures and criteria 14 that [WHICH] are elements of the district coastal management program, or the 15 variance is otherwise approved by the council; and 16 (3) procedures and standards adopted by the coastal resource district 17 as required by this chapter or by the guidelines and standards adopted by the council 18 and subsequently approved by the legislature have been followed and considered. 19 * Sec. 5. AS 46.40.100(d) is amended to read: 20 (d) Except when a petition has been filed under AS 46.40.096(e), in [IN] 21 determining whether a state agency is complying with a district coastal management 22 program with respect to its exercise of regulation or control of the resources within the 23 coastal area, the council shall find in favor of the agency if 24 (1) the use or activity for which the permit, license, or approval is 25 granted is consistent with the district coastal management program and regulations 26 adopted under it; and 27 (2) the use or activity for which the permit, license, or approval is 28 granted is consistent with requirements imposed by state statute, regulation, or local 29 ordinance applicable to the use or activity. 30 * Sec. 6. AS 46.40.100 is amended by adding new subsections to read: 31 (f) Upon receipt of a petition under (b) of this section, the council shall give
01 notice of the hearing convened to consider the petition as follows: 02 (1) notice of the hearing shall be given at least 10 days before the 03 scheduled date of the hearing 04 (A) by publication in 05 (i) a newspaper of statewide circulation; or 06 (ii) a newspaper of general circulation in the vicinity of 07 the district coastal management program that is the subject of the 08 petition; and 09 (B) by at least one of the following methods: 10 (i) publication through public service announcements on 11 the electronic media serving the area affected by the district coastal 12 management program; 13 (ii) posting in a conspicuous location in the vicinity of 14 the proposed project or action; 15 (iii) notifying parties known or likely to be affected by 16 the proposed project or action; or 17 (iv) another method calculated to effectively notify 18 affected interested parties. 19 (2) a notice provided under (1) of this subsection must 20 (A) contain sufficient information in commonly understood 21 terms to inform the public of the nature of the petition; and 22 (B) indicate the manner in which the public may comment on 23 the petition if the petition is filed under (b)(2) of this section. 24 (g) The opportunity to petition under (b)(2) of this section is limited to 25 (1) a coastal resource district; 26 (2) a citizen of the coastal resource district; or 27 (3) a state agency. 28 * Sec. 7. AS 46.40.210 is amended by adding new paragraphs to read: 29 (7) "consistency review" means the evaluation of a proposed project 30 against the standards adopted by the council under AS 46.40.040 and a district coastal 31 management program approved by the council under AS 46.40.060;
01 (8) "office" means the office of management and budget established in 02 the Office of the Governor.