CSSB 238(FIN): "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."
00CS FOR SENATE BILL NO. 238(FIN) 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. Not more than 30 days shall elapse between the filing of the petition and 07 the decision by the council. Under this subsection, 08 (1) the right to file a petition is limited to 09 (A) each of the following parties, but only if the party had 10 submitted comments during the period for receipt of public comments 11 established under (c) of this section: 12 (i) an affected coastal resource district; 13 (ii) a state agency; or 14 (iii) a citizen of an affected coastal resource district; or 15 (B) the project applicant; and 16 (2) the reviewing entity 17 (A) may not accept a petition filed under this subsection if a 18 final consistency determination has been rendered under (d)(4) of this 19 subsection; 20 (B) may accept a petition filed by a party identified in (1)(A)(i), 21 (1)(A)(ii), or (1)(B) of this subsection only if a party had requested a review 22 of the proposed consistency determination prepared under (d)(2) of this section; 23 (C) may accept a petition filed by a party identified in 24 (1)(A)(iii) of this subsection without regard to whether a party had requested 25 a review of the proposed consistency determination prepared under (d)(2) of 26 this subsection. 27 (f) For a consistency review subject to AS 44.19.145(a)(11), the council may, 28 by regulation, limit consideration of a petition under (e) of this section seeking review 29 of a proposed consistency determination to the extent necessary to meet the deadlines 30 set by federal law for timely submission of a federal consistency determination as 31 allowed by 16 U.S.C. 1456.
01 (g) In this section, 02 (1) "affected coastal resource district" means a coastal resource district 03 in which a project is proposed to be located or which may experience a direct and 04 significant impact from a proposed project; 05 (2) "reviewing entity" means the 06 (A) office, for a consistency review subject to 07 AS 44.19.145(a)(11); 08 (B) state agency identified in (b) of this section, for a 09 consistency review not subject to AS 44.19.145(a)(11). 10 * Sec. 3. AS 46.40.100(b) is amended to read: 11 (b) A party that is authorized under AS 46.40.096(e)(1) or (g) of this 12 section may file a petition showing that a district coastal management program 13 is not being implemented, enforced, or complied with. On receipt of a petition [OF 14 A COASTAL RESOURCE DISTRICT, A CITIZEN OF THE DISTRICT, OR A 15 STATE AGENCY, SHOWING THAT A DISTRICT COASTAL MANAGEMENT 16 PROGRAM IS NOT BEING IMPLEMENTED, ENFORCED OR COMPLIED WITH], 17 the council, after giving public notice in the manner required by (f) of this section, 18 shall convene a [PUBLIC] hearing to consider the matter. A hearing called under this 19 subsection shall be held in accordance with regulations adopted by the council [THE 20 ADMINISTRATIVE PROCEDURE ACT (AS 44.62)]. After hearing, 21 (1) if the petition was filed under AS 46.40.096(e) and the council 22 finds that 23 (A) the office or the state agency responsible for 24 coordinating the consistency review has not fairly considered the 25 petitioner's comments in the development of a proposed consistency 26 determination, the council shall remand the proposed consistency 27 determination to the office, or to the state agency responsible for 28 coordinating the consistency review, for preparation of a revised proposed 29 consistency determination that gives fair consideration to the petitioner's 30 comments; 31 (B) a remand of the consistency determination is not
01 required under (A) of this paragraph, the council shall dismiss the petition; 02 (2) if the petition was not filed under AS 46.40.096(e), the council 03 may order that the coastal resource district or a state agency take any action [WHICH] 04 the council considers necessary to implement, enforce, or comply with the district 05 coastal management program. 06 * Sec. 4. AS 46.40.100(c) is amended to read: 07 (c) Except when a petition has been filed under AS 46.40.096(e), in [IN] 08 determining whether an approved district coastal management program is being 09 implemented, enforced, or complied with by a coastal resource district that [WHICH] 10 exercises zoning authority or controls on the use of resources within the coastal area, 11 the council shall find in favor of the district if 12 (1) zoning or other regulations have been adopted and are being 13 enforced; 14 (2) variances are being granted according to procedures and criteria 15 that [WHICH] are elements of the district coastal management program, or the 16 variance is otherwise approved by the council; and 17 (3) procedures and standards adopted by the coastal resource district 18 as required by this chapter or by the guidelines and standards adopted by the council 19 and subsequently approved by the legislature have been followed and considered. 20 * Sec. 5. AS 46.40.100(d) is amended to read: 21 (d) Except when a petition has been filed under AS 46.40.096(e), in [IN] 22 determining whether a state agency is complying with a district coastal management 23 program with respect to its exercise of regulation or control of the resources within the 24 coastal area, the council shall find in favor of the agency if 25 (1) the use or activity for which the permit, license, or approval is 26 granted is consistent with the district coastal management program and regulations 27 adopted under it; and 28 (2) the use or activity for which the permit, license, or approval is 29 granted is consistent with requirements imposed by state statute, regulation, or local 30 ordinance applicable to the use or activity. 31 * Sec. 6. AS 46.40.100 is amended by adding new subsections to read:
01 (f) Upon receipt of a petition under (b) of this section, the council shall give 02 notice of the hearing convened to consider the petition as follows: 03 (1) notice of the hearing shall be given at least 10 days before the 04 scheduled date of the hearing 05 (A) by publication in 06 (i) a newspaper of statewide circulation; or 07 (ii) a newspaper of general circulation in the vicinity of 08 the district coastal management program that is the subject of the 09 petition; and 10 (B) by at least one of the following methods: 11 (i) publication through public service announcements on 12 the electronic media serving the area affected by the district coastal 13 management program; 14 (ii) posting in a conspicuous location in the vicinity of 15 the proposed project or action; 16 (iii) notifying parties known or likely to be affected by 17 the proposed project or action; or 18 (iv) another method calculated to effectively notify 19 affected interested parties. 20 (2) a notice provided under (1) of this subsection must 21 (A) contain sufficient information in commonly understood 22 terms to inform the public of the nature of the petition; and 23 (B) indicate the manner in which the public may comment on 24 the petition if the petition is filed under (b)(2) of this section. 25 (g) The opportunity to petition under (b)(2) of this section is limited to 26 (1) a coastal resource district; 27 (2) a citizen of the coastal resource district; or 28 (3) a state agency. 29 * Sec. 7. AS 46.40.210 is amended by adding new paragraphs to read: 30 (7) "consistency review" means the evaluation of a proposed project 31 against the standards adopted by the council under AS 46.40.040 and a district coastal
01 management program approved by the council under AS 46.40.060; 02 (8) "office" means the office of management and budget established in 03 the Office of the Governor.