Enrolled HB 191: Relating to the Alaska coastal management program and to policies and procedures for consistency reviews and the rendering of consistency determinations under that program; eliminating the Alaska Coastal Policy Council; annulling certain regulations relating to the Alaska coastal management program; and providing for an effective date.
00Enrolled HB 191 01 Relating to the Alaska coastal management program and to policies and procedures for 02 consistency reviews and the rendering of consistency determinations under that program; 03 eliminating the Alaska Coastal Policy Council; annulling certain regulations relating to the 04 Alaska coastal management program; and providing for an effective date. 05 _______________ 06 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section 07 to read: 08 FINDINGS. The legislature finds that 09 (1) the Alaska coastal management program (ACMP) is intended to function 10 with a minimum of delay and avoid regulatory confusion, costly litigation, and uncertainty 11 regarding the feasibility of new investment; 12 (2) there is a need to update and reform the existing statewide standards of the
01 ACMP so that they are clear and concise and provide needed predictability as to the 02 applicability, scope, and timing of the consistency review process under the program; 03 (3) there is a need to update and reform the district coastal management plans 04 under the ACMP so that the local enforceable policies within those plans are clear and 05 concise, provide greater uniformity in coastal management throughout the state, relate to 06 matters of local concern, and do not duplicate state and federal requirements; 07 (4) the state has chosen not to enact legislation similar to 42 U.S.C. 4321 - 08 4370f (National Environmental Policy Act of 1969, as amended) and, in furtherance of the 09 legislative findings expressed in sec. 1(7), ch. 38, SLA 1994, the ACMP is not intended to 10 take the place of such a program; 11 (5) to achieve these goals, statutory reform is needed; and 12 (6) to implement these needed reforms at the administrative level, it is in the 13 best interest of the state for the development and implementation of the ACMP to be 14 transferred from the Alaska Coastal Policy Council to the Department of Natural Resources. 15 * Sec. 2. AS 38.05.825(a) is amended to read: 16 (a) Unless the commissioner finds that the public interest in retaining state 17 ownership of the land clearly outweighs the municipality's interest in obtaining the 18 land, the commissioner shall convey to a municipality tide or submerged land 19 requested by the municipality that is occupied or suitable for occupation and 20 development if the 21 (1) land is within or contiguous to the boundaries of the municipality; 22 (2) use of the land would not unreasonably interfere with navigation or 23 public access; 24 (3) municipality has applied to the commissioner for conveyance of the 25 land under this section; 26 (4) land is not subject to a shore fisheries lease under AS 38.05.082, 27 or, if the land is subject to a shore fisheries lease, the commissioner determines it is in 28 the best interests of the state to convey the land; 29 (5) land is classified for waterfront development or for another use that 30 is consistent or compatible with the use proposed by the municipality, or the proposed 31 use of the land is consistent or compatible with a land use plan adopted by the
01 municipality or [,] the department [, OR THE ALASKA COASTAL POLICY 02 COUNCIL]; and 03 (6) land 04 (A) is required for the accomplishment of a public or private 05 development approved by the municipality; 06 (B) is the subject of a lease from the state to the municipality; 07 or 08 (C) has been approved for lease to the municipality. 09 * Sec. 3. AS 44.33.781 is amended to read: 10 Sec. 44.33.781. Planning assistance for development and maintenance of 11 district coastal management plans [PROGRAMS]. The department shall conduct a 12 program of research, training, and technical assistance to coastal resource districts 13 necessary for the development, [AND] implementation, and maintenance of district 14 coastal management plans [PROGRAMS] under AS 46.40. The technical assistance 15 shall include the direct granting to the coastal resource districts of a portion of any 16 funds received by the state from the federal coastal zone management program, in 17 amounts to be individually determined for each coastal resource district by the 18 commissioner of community and economic development. State agencies shall assist 19 the department in carrying out the purposes of this section. 20 * Sec. 4. AS 44.62.800(1) is amended to read: 21 (1) "agency" means a department, an institution, or a division or other 22 administrative unit of the executive branch of state government authorized or required 23 by law to make regulations, except that "agency" does not include 24 (A) a board, [;] a commission; [;] a council, [EXCEPT THE 25 ALASKA COASTAL POLICY COUNCIL ESTABLISHED IN 26 AS 46.39.020;] an authority, [;] or a public corporation of the executive branch 27 of state government authorized or required by law to make regulations; or 28 (B) the Department of Corrections; 29 * Sec. 5. AS 46.39.010 is amended by adding a new subsection to read: 30 (c) The department may adopt regulations necessary to implement this 31 chapter.
01 * Sec. 6. AS 46.39.030 is amended to read: 02 Sec. 46.39.030. Powers of the department [COUNCIL]. The department 03 [COUNCIL] may 04 (1) apply for and accept grants, contributions, and appropriations, 05 including application for and acceptance of federal funds that may become available 06 for coastal planning and management; 07 (2) contract for necessary services; 08 (3) consult and cooperate with 09 (A) persons, organizations, and groups, public or private, 10 interested in, affected by, or concerned with coastal area planning and 11 management; 12 (B) agents and officials of the coastal resource districts of the 13 state, and federal and state agencies concerned with or having jurisdiction over 14 coastal planning and management; 15 (4) take any reasonable action necessary to carry out the provisions of 16 this chapter or AS 46.40 [AS 46.39.020 - 46.39.050]. 17 * Sec. 7. AS 46.39.040 is amended to read: 18 Sec. 46.39.040. Duties of the department [COUNCIL]. In conformity with 19 16 U.S.C. 1451 - 1464 (Coastal Zone Management Act of 1972), as amended, the 20 department [COUNCIL] shall 21 (1) [THROUGH THE PUBLIC HEARING PROCESS AND THE 22 RECORDING OF THE MINUTES OF THE HEARINGS,] develop statewide 23 [GUIDELINES AND] standards for the Alaska coastal management program, and 24 criteria for the preparation [OF,] and approval of district coastal management 25 plans [APPROVE,] in accordance with AS 46.40 [, THE ALASKA COASTAL 26 MANAGEMENT PROGRAM]; 27 (2) establish continuing coordination among state agencies to facilitate 28 the development and implementation of the Alaska coastal management program; in 29 carrying out its duties under this paragraph, the department [COUNCIL] shall initiate 30 an interagency program of comprehensive coastal resource planning for each 31 geographic region of the state [DESCRIBED IN AS 46.39.020(a)(1)];
01 (3) assure continued provision of data and information to coastal 02 resource districts to carry out their planning and management functions under the 03 program. 04 * Sec. 8. AS 46.40.010 is amended to read: 05 Sec. 46.40.010. Development of Alaska coastal management program. (a) 06 The department [ALASKA COASTAL POLICY COUNCIL ESTABLISHED IN 07 AS 46.39.020] shall approve, in accordance with this chapter, the Alaska coastal 08 management program. 09 (b) The department [COUNCIL] may approve the Alaska coastal 10 management program for a portion or portions of the coastal area before approving the 11 complete program under (a) of this section. Portions of the program approved under 12 this subsection shall be incorporated into the Alaska coastal management program. 13 (c) The Alaska coastal management program shall be reviewed by the 14 department [COUNCIL] and, when appropriate, revised to 15 (1) add newly approved district coastal management plans 16 [PROGRAMS], or revisions and amendments to the Alaska coastal management 17 program; 18 (2) integrate newly approved district coastal management plans 19 [PROGRAMS], or revisions and amendments of district coastal management plans 20 [PROGRAMS], with existing approved plans [PROGRAMS] and with plans 21 developed by state agencies; 22 (3) add new or revised state statutes, policies, regulations, or other 23 appropriate material; 24 (4) review the effectiveness of implementation of district coastal 25 management plans [PROGRAMS]; and 26 (5) consider new information acquired by the state and coastal resource 27 districts. 28 (d) All reviews and revisions shall be in accordance with the statewide 29 [GUIDELINES AND] standards and district plan criteria adopted [BY THE 30 COUNCIL] under AS 46.40.040. 31 * Sec. 9. AS 46.40.030 is amended to read:
01 Sec. 46.40.030. Development of district coastal management plans 02 [PROGRAMS]. (a) Coastal resource districts shall develop and adopt district coastal 03 management plans [PROGRAMS] in accordance with the provisions of this chapter. 04 The plan [PROGRAM] adopted by a coastal resource district shall be based upon a 05 municipality's existing comprehensive plan or a new comprehensive resource use plan 06 or comprehensive statement of needs, policies, objectives, and standards governing the 07 use of resources within the coastal area of the district. The plan [PROGRAM] must 08 meet [BE CONSISTENT WITH] the statewide [GUIDELINES AND] standards and 09 district plan criteria adopted [BY THE COUNCIL] under AS 46.40.040 and must 10 include 11 (1) a delineation within the district of the boundaries of the coastal area 12 subject to the district coastal management plan [PROGRAM]; 13 (2) a statement, list, or definition of the land and water uses and 14 activities subject to the district coastal management plan [PROGRAM]; 15 (3) a statement of policies to be applied to the land and water uses 16 subject to the district coastal management plan [PROGRAM]; 17 (4) [ REGULATIONS, AS APPROPRIATE, TO BE APPLIED TO 18 THE LAND AND WATER USES SUBJECT TO THE DISTRICT COASTAL 19 MANAGEMENT PROGRAM; 20 (5)] a description of the uses and activities that [WHICH] will be 21 considered proper and the uses and activities that [WHICH] will be considered 22 improper with respect to the land and water within the coastal area; 23 [(6) A SUMMARY OR STATEMENT OF THE POLICIES WHICH 24 WILL BE APPLIED AND THE PROCEDURES WHICH WILL BE USED TO 25 DETERMINE WHETHER SPECIFIC PROPOSALS FOR LAND OR WATER USES 26 OR ACTIVITIES SHALL BE ALLOWED;] and 27 (5) [(7)] a designation of, and the policies that [WHICH] will be 28 applied to the use of, areas within the coastal resource district that [WHICH] merit 29 special attention. 30 (b) In developing enforceable policies in its coastal management plan 31 [STATEMENTS OF POLICIES AND REGULATIONS] under (a) of this section, a
01 coastal resource district shall meet the requirements of AS 46.40.070 and may not 02 duplicate, restate, or incorporate by reference statutes and administrative regulations 03 adopted by state or federal agencies. 04 * Sec. 10. AS 46.40.040 is amended to read: 05 Sec. 46.40.040. Statewide standards and district plan criteria [DUTIES 06 OF THE ALASKA COASTAL POLICY COUNCIL]. Except as provided in (b) 07 of this section and AS 41.17, the department [THROUGH THE PUBLIC 08 HEARING PROCESS AND THE RECORDING OF THE MINUTES OF THE 09 HEARINGS, THE ALASKA COASTAL POLICY COUNCIL] shall 10 (1) by regulation, adopt under the provisions of AS 44.62 11 (Administrative Procedure Act) for the use of and application by coastal resource 12 districts and state agencies for carrying out their responsibilities under this chapter, 13 statewide [GUIDELINES AND] standards and district coastal management plan 14 criteria for 15 (A) identifying the boundaries of the coastal area subject to the 16 Alaska [DISTRICT] coastal management program; 17 (B) determining the land and water uses and activities subject 18 to the Alaska [DISTRICT] coastal management program; 19 (C) developing policies applicable to the land and water uses 20 subject to the Alaska [DISTRICT] coastal management program; 21 (D) developing regulations applicable to the land and water 22 uses subject to the Alaska [DISTRICT] coastal management program; 23 (E) developing policies and procedures to determine whether 24 specific proposals for the land and water uses or activities subject to the 25 Alaska [DISTRICT] coastal management program shall be allowed; 26 (F) designating and developing policies for the use of areas of 27 the coast that [WHICH] merit special attention; and 28 (G) measuring the progress of a coastal resource district in 29 meeting its responsibilities under this chapter; 30 (2) develop and maintain a program of technical and financial 31 assistance to aid coastal resource districts in the development and implementation of
01 district coastal management plans [PROGRAMS]; 02 (3) undertake review and approval of district coastal management 03 plans [PROGRAMS] in accordance with this chapter; 04 (4) initiate a process for identifying and managing uses of state 05 concern within specific areas of the coast; 06 (5) develop procedures or guidelines for consultation and coordination 07 with federal agencies managing land or conducting activities potentially affecting the 08 coastal area of the state; 09 (6) by regulation, establish a consistency review and determination or 10 certification process that conforms to the requirements of AS 46.40.096. 11 * Sec. 11. AS 46.40.040 is amended by adding new subsections to read: 12 (b) AS 46.03, AS 46.04, AS 46.09, AS 46.14, and the regulations adopted 13 under those statutes constitute the exclusive enforceable policies of the Alaska coastal 14 management program for those purposes. For those purposes only, 15 (1) the issuance of permits, certifications, approvals, and 16 authorizations by the Department of Environmental Conservation establishes 17 consistency with the Alaska coastal management program for those activities of a 18 proposed project subject to those permits, certifications, approvals, and authorizations; 19 (2) for a consistency review of an activity that does not require a 20 Department of Environmental Conservation permit, certification, approval, or 21 authorization because the activity is a federal activity or the activity is located on 22 federal land or the federal outer continental shelf, consistency with AS 46.03, 23 AS 46.04, AS 46.09, and AS 46.14 and the regulations adopted under those statutes 24 shall be established on the basis of whether the Department of Environmental 25 Conservation finds that the activity satisfies the requirements of those statutes and 26 regulations. 27 (c) For a consistency review described in (b)(2) of this section, the 28 department, in addition to its review under AS 46.40.096 of all other enforceable 29 policies applicable to the project, shall coordinate with the Department of 30 Environmental Conservation and issue the Department of Environmental 31 Conservation's finding of whether the activity satisfies the requirements of the statutes
01 and regulations described in (b)(2) of this section. 02 * Sec. 12. AS 46.40.050 is repealed and reenacted to read: 03 Sec. 46.40.050. Submission of district plans by coastal resource districts. 04 (a) A coastal resource district must review and resubmit its coastal management plan 05 for reapproval every 10 years after its approval by the department under 06 AS 46.40.060. 07 (b) Within 30 months after certification of the organization of a new coastal 08 resource district, the coastal resource district shall complete and submit to the 09 department a proposed district coastal management plan. If, after receipt of a written 10 request for extension from the coastal resource district, the department considers an 11 extension proper, the department may grant an extension to a date that is within 54 12 months after certification of the results of the coastal resource district's organization. 13 A request under this subsection must include the reasons for the extension. 14 * Sec. 13. AS 46.40.060 is amended to read: 15 Sec. 46.40.060. Review and approval by the department [COUNCIL]. (a) 16 If, upon submission of a district coastal management plan [PROGRAM] for approval, 17 the department [COUNCIL] finds that the plan meets [PROGRAM IS 18 SUBSTANTIALLY CONSISTENT WITH] the provisions of this chapter and the 19 statewide [GUIDELINES AND] standards and district plan criteria adopted by the 20 department [COUNCIL] and does not arbitrarily or unreasonably restrict or exclude 21 uses of state concern, the department [COUNCIL] may approve [GRANT 22 SUMMARY APPROVAL OF] the district coastal management plan [PROGRAM], or 23 may approve portions of the district plan that meet those requirements [PROGRAM 24 WHICH ARE CONSISTENT]. 25 (b) If the department [COUNCIL] finds that a district coastal management 26 plan [PROGRAM] is not approvable or is approvable only in part under (a) of this 27 section, it shall direct that deficiencies in the plan [PROGRAM] submitted by the 28 coastal resource district be mediated. In mediating the deficiencies, the department 29 [COUNCIL] may call for one or more public hearings in the district. The department 30 [COUNCIL] shall meet with officials of the coastal resource district in order to resolve 31 differences.
01 (c) If, after mediation, the differences have not been resolved [TO THE 02 MUTUAL AGREEMENT OF THE COASTAL RESOURCE DISTRICT AND THE 03 COUNCIL, THE COUNCIL SHALL CALL FOR A PUBLIC HEARING AND 04 SHALL RESOLVE THE DIFFERENCES IN ACCORDANCE WITH AS 44.62 05 (ADMINISTRATIVE PROCEDURE ACT). AFTER A PUBLIC HEARING HELD 06 UNDER THIS SUBSECTION], the department [COUNCIL] shall enter findings 07 and, by order, may require 08 (1) that the district coastal management plan [PROGRAM] be 09 amended to satisfy [MAKE IT CONSISTENT WITH] the provisions of this chapter 10 or meet the statewide [GUIDELINES AND] standards and district plan criteria 11 adopted by the department [COUNCIL]; 12 (2) that the district coastal management plan [PROGRAM] be revised 13 to accommodate a use of state concern; or 14 (3) any other action be taken by the coastal resource district as 15 appropriate. 16 (d) The superior courts of the state have jurisdiction to enforce orders of the 17 department [COUNCIL] entered under (c) of this section. 18 * Sec. 14. AS 46.40.070 is repealed and reenacted to read: 19 Sec. 46.40.070. Requirements for department review and approval. (a) 20 The department shall approve a district coastal management plan submitted for review 21 and approval if 22 (1) the district coastal management plan meets the requirements of this 23 chapter and the statewide standards and district plan criteria adopted by the 24 department; and 25 (2) the enforceable policies of the district coastal management plan 26 (A) are clear and concise as to the activities and persons 27 affected by the policies, and the requirements of the policies; 28 (B) use precise, prescriptive, and enforceable language; and 29 (C) do not address a matter regulated or authorized by state or 30 federal law unless the enforceable policies relate specifically to a matter of 31 local concern; for purposes of this subparagraph, "matter of local concern"
01 means a specific coastal use or resource within a defined portion of the 02 district's coastal zone, that is 03 (i) demonstrated as sensitive to development; 04 (ii) not adequately addressed by state or federal law; 05 and 06 (iii) of unique concern to the coastal resource district as 07 demonstrated by local usage or scientific evidence. 08 (b) A decision by the department under this section shall be given within 90 09 days after submission of the district coastal management plan to the department. 10 * Sec. 15. AS 46.40.090 is amended to read: 11 Sec. 46.40.090. Implementation of district coastal management plans 12 [PROGRAMS]. (a) A district coastal management plan [PROGRAM] approved 13 under this chapter [BY THE COUNCIL AND THE LEGISLATURE] for a coastal 14 resource district that [WHICH] does not have and exercise zoning or other controls on 15 the use of resources within the coastal area shall be implemented by appropriate state 16 agencies as provided in AS 46.40.096. Implementation shall be in accordance with 17 the comprehensive use plan or the statement of needs, policies, objectives, and 18 standards adopted by the district. 19 (b) A coastal resource district that [WHICH] has and exercises zoning or 20 other controls on the use of resources within the coastal area shall implement its 21 district coastal management plan [PROGRAM]. Implementation shall be in 22 accordance with the comprehensive use plan or the statement of needs, policies, 23 objectives, and standards adopted by the district. 24 * Sec. 16. AS 46.40.094(a) is amended to read: 25 (a) The provisions of this section apply to a use or activity for which a 26 consistency determination is required if 27 (1) at the time the proposed use or activity is initiated, there is 28 insufficient information to evaluate and render a consistency determination for the 29 entirety of the proposed use or activity; 30 (2) the proposed use or activity is capable of proceeding in discrete 31 phases based upon developing information that was not available to the project
01 applicant at the time of the previous [OBTAINED IN THE COURSE OF A] phase; 02 and 03 (3) each subsequent phase of the proposed use or activity is subject to 04 discretion to implement alternative decisions based upon the developing information. 05 * Sec. 17. AS 46.40.096(a) is amended to read: 06 (a) The department [COUNCIL] shall, by regulation, establish a consistency 07 review and determination process that conforms to the requirements of this section. 08 * Sec. 18. AS 46.40.096(b) is amended to read: 09 (b) If a consistency review is not subject to AS 46.39.010 because the project 10 for which a consistency review is made requires a permit, lease, or authorization from 11 only one state resource agency, that state resource agency shall coordinate the 12 consistency review of the project. The state resource agency shall coordinate the 13 consistency review according to the requirements of the regulations adopted by the 14 department [COUNCIL] under this section. 15 * Sec. 19. AS 46.40.096(c) is amended to read: 16 (c) The regulations adopted by the department [COUNCIL] under this 17 section must include provisions for public notice and provide the opportunity for 18 public comment. The regulations adopted under this subsection may make 19 distinctions relating to notice based upon differences in project type, anticipated effect 20 of the project on coastal resources and uses, other state or federal notice requirements, 21 and time constraints. However, a notice given under this subsection must contain 22 sufficient information, expressed in commonly understood terms, to inform the public 23 of the nature of the proposed project for which a consistency determination is sought, 24 and must explain how the public may comment on the proposed project. 25 * Sec. 20. AS 46.40.096(d) is amended to read: 26 (d) In preparing a consistency review and determination for a proposed 27 project, the reviewing entity shall 28 (1) request consistency review comments for the proposed project 29 from state resource agencies, affected coastal resource districts, and other interested 30 parties as determined by regulation adopted by the department [COUNCIL]; 31 (2) prepare proposed consistency determinations;
01 (3) coordinate subsequent reviews of proposed consistency 02 determinations prepared under (2) of this subsection; a subsequent review of a 03 proposed consistency determination under this paragraph 04 (A) is limited to a review by the department [STATE 05 RESOURCE AGENCIES]; [AND] 06 (B) may occur only if requested by 07 (i) the project applicant; 08 (ii) a state resource agency; or 09 (iii) an affected coastal resource district; and 10 (C) shall be completed by the department within 45 days 11 after the initial request for subsequent review under this paragraph; 12 (4) render the final consistency determination and certification. 13 * Sec. 21. AS 46.40.096(g) is amended to read: 14 (g) The reviewing entity shall [MAY] exclude from the consistency review 15 and determination process for a project 16 (1) an activity that 17 (A) is authorized under a general or nationwide permit that has 18 previously been determined to be consistent with the Alaska [APPLICABLE] 19 coastal management program [PROGRAMS]; or 20 (B) is subject to authorization by the Department of 21 Environmental Conservation under the requirements described in 22 AS 46.40.040(b); 23 (2) activities excluded from a consistency review under AS 41.17; 24 and 25 (3) the issuance of an authorization or permit issued by the Alaska Oil 26 and Gas Conservation Commission. 27 * Sec. 22. AS 46.40.096 is amended by adding new subsections to read: 28 (i) For purposes of those activities of a proposed project that are subject to 29 (g)(1)(B) of this section, the consistency of those activities is determined by the 30 issuance of the applicable permits, certifications, approvals, and authorizations by the 31 Department of Environmental Conservation.
01 (j) Except as provided in AS 41.17, 16 U.S.C. 1456, and 15 C.F.R. Part 930, a 02 consistency review of a project under this section is triggered by an activity within the 03 areas described in (l) of this section that is subject to a state resource agency permit, 04 lease, authorization, approval, or certification. 05 (k) Except as provided in (g) of this section, AS 41.17, AS 46.40.040(b), and 06 AS 46.40.094, the scope of a consistency review of a project, once triggered under (j) 07 of this section, is limited to activities that are located within the areas described in (l) 08 of this section and that either are subject to a state resource agency permit, lease, 09 authorization, approval, or certification or are the subject of a coastal resource district 10 enforceable policy approved by the department under this chapter. The scope of a 11 consistency review subject to 16 U.S.C. 1456 is determined under 16 U.S.C. 1456 and 12 15 C.F.R. Part 930. 13 (l) The regulations adopted under (a) of this section apply, as authorized by 16 14 U.S.C. 1456(c), to 15 (1) activities within the coastal zone; and 16 (2) activities on federal land, including the federal outer continental 17 shelf, that would affect any land or water use or natural resource of the state's coastal 18 zone; for purposes of this paragraph, those activities consist of any activity on the 19 federal outer continental shelf and any activity on federal land that are within the 20 geographic boundaries of the state's coastal zone notwithstanding the exclusion of 21 federal land in 16 U.S.C. 1453(1). 22 (m) As part of the regulations adopted under (a) of this section, the department 23 shall establish a list of permits, certifications, leases, approvals, and authorizations 24 issued by a state resource or federal agency that will trigger a consistency review 25 under (j) of this section. In addition, the department shall establish in regulation 26 categories and descriptions of uses and activities that, for purposes of evaluating 27 consistency with the Alaska coastal management program, are determined to be 28 categorically consistent or generally consistent after the inclusion of standard 29 alternative measures. These categories of uses and activities must be as broad as 30 possible so as to minimize the number of projects that must undergo an individualized 31 consistency review under this section.
01 (n) Except as provided in (o) of this section, a consistency review under this 02 section shall be completed within 90 days after the receipt of a complete application 03 by the state. If a consistency review is not completed by the time specified in this 04 subsection, the activity subject to review is conclusively presumed consistent. 05 (o) The time limitations in (n) of this section 06 (1) do not apply to a consistency review involving the disposal of an 07 interest in state land or resources; 08 (2) are suspended 09 (A) from the time the reviewing entity determines that the 10 applicant has not adequately responded in writing within 14 days after the 11 receipt of a written request from the reviewing entity for additional 12 information, until the time the reviewing entity determines that the applicant 13 has provided an adequate written response; 14 (B) during a period of time requested by the applicant; 15 (C) during the period of time a consistency review is 16 undergoing a subsequent review under (d)(3) of this section. 17 (p) A consistency review and determination for those activities of a project not 18 excluded under (g) of this section may not be delayed or withheld pending issuance of 19 the permits, certifications, approvals, and authorizations referred to in (g) of this 20 section but shall proceed regardless of the status of those permits, certifications, 21 approvals, and authorizations. 22 * Sec. 23. AS 46.40.100(a) is amended to read: 23 (a) As provided in AS 46.40.090 and 46.40.096, municipalities 24 [MUNICIPALITIES] and state resource agencies shall administer land and water use 25 regulations or controls in conformity with district coastal management plans 26 [PROGRAMS] approved under this chapter [BY THE COUNCIL] and in effect. 27 * Sec. 24. AS 46.40.100(b) is amended to read: 28 (b) A party that is authorized under (g) of this section may file a petition 29 showing that a district coastal management plan [PROGRAM] is not being 30 implemented. A petition filed under this subsection may not seek review of a 31 proposed or final consistency determination regarding a specific project. On receipt of
01 a petition, the department [COUNCIL], after giving public notice in the manner 02 required by (f) of this section, shall convene a hearing to consider the matter. A 03 hearing called under this subsection shall be held in accordance with regulations 04 adopted under this chapter [BY THE COUNCIL]. After hearing, the department 05 [COUNCIL] may order that the coastal resource district or a state resource agency 06 take any action with respect to future implementation of the district coastal 07 management plan [PROGRAM] that the department [COUNCIL] considers 08 necessary, except that the department [COUNCIL] may not order that the coastal 09 resource district or a state agency take any action with respect to a proposed or final 10 consistency determination that has been issued. 11 * Sec. 25. AS 46.40.100(c) is amended to read: 12 (c) In determining whether an approved district coastal management plan 13 [PROGRAM] is being implemented by a coastal resource district that exercises zoning 14 authority or controls on the use of resources within the coastal area or by a state 15 resource agency, the department [COUNCIL] shall find in favor of the district or the 16 state resource agency, unless the department [COUNCIL] finds a pattern of 17 nonimplementation. 18 * Sec. 26. AS 46.40.100(e) is amended to read: 19 (e) The superior courts of the state have jurisdiction to enforce lawful orders 20 of the department under this chapter [COUNCIL]. 21 * Sec. 27. AS 46.40.100(f) is amended to read: 22 (f) Upon receipt of a petition under (b) of this section, the department 23 [COUNCIL] shall give notice of the hearing at least 10 days before the scheduled date 24 of the hearing. The notice must 25 (1) contain sufficient information in commonly understood terms to 26 inform the public of the nature of the petition; and 27 (2) indicate the manner in which the public may comment on the 28 petition. 29 * Sec. 28. AS 46.40.100(h) is amended to read: 30 (h) If the department [COUNCIL] finds a pattern of nonimplementation 31 under (c) of this section, the department [COUNCIL] may order a coastal resource
01 district or a state resource agency to take action with respect to future implementation 02 of the district coastal management plan [PROGRAM] that the department 03 [COUNCIL] considers necessary to implement the district coastal management plan 04 [PROGRAM]. The department's [COUNCIL'S] determination under (c) of this 05 section and any order issued under this subsection shall be considered a final 06 administrative order for purposes of judicial review under AS 44.62.560. 07 * Sec. 29. AS 46.40.110 is repealed and reenacted to read: 08 Sec. 46.40.110. Authority in the unorganized borough. A coastal resource 09 service area in the unorganized borough organized under AS 29.03.020 and 10 AS 46.40.110 - 46.40.180 before the effective date of this bill section shall exercise 11 those authorities and perform those duties required under this chapter. 12 * Sec. 30. AS 46.40.140(a) is amended to read: 13 (a) Each coastal resource service area [, UPON ORGANIZATION,] shall have 14 an elected board representing the population of the service area. The board shall have 15 the powers and duties and perform the functions prescribed for or required of coastal 16 resource districts. 17 * Sec. 31. AS 46.40.140(d) is amended to read: 18 (d) The term of office of a member of a coastal resource service area board is 19 three years [, EXCEPT THAT THE TERMS OF THE MEMBERS OF THE FIRST 20 BOARD ELECTED AFTER ORGANIZATION OF A COASTAL RESOURCE 21 SERVICE AREA SHALL BE DETERMINED BY LOT, WITH TWO MEMBERS 22 SERVING ONE-YEAR TERMS, TWO MEMBERS SERVING TWO-YEAR 23 TERMS, AND THREE MEMBERS SERVING THREE-YEAR TERMS]. Members 24 serve until their successors are elected and have qualified. This section does not 25 prohibit the reelection of a board member. 26 * Sec. 32. AS 46.40.140(e) is amended to read: 27 (e) The lieutenant governor shall provide for the election of the members of 28 coastal resource service area boards. [THE FIRST ELECTION OF BOARD 29 MEMBERS SHALL OCCUR AT THE SAME TIME AS THE ORGANIZATION 30 ELECTION UNDER AS 46.40.130(b)]. 31 * Sec. 33. AS 46.40.140(f) is amended to read:
01 (f) Election [EXCEPT FOR THE FIRST ELECTION] of members of coastal 02 resource service area boards [, ELECTIONS] shall be held annually on the date of 03 election of members of regional educational attendance area boards under 04 AS 14.08.071(b). [FOR AN ELECTION UNDER THIS SUBSECTION OR UNDER 05 (e) OF THIS SECTION, A NEWLY ELECTED BOARD MEMBER TAKES 06 OFFICE AT THE FIRST COASTAL RESOURCE SERVICE AREA BOARD 07 MEETING AFTER CERTIFICATION OF THE ELECTION.] If no candidate files 08 for election to a seat on the coastal resource service area board, the seat is considered 09 vacant at the time a newly elected member would have taken office. 10 * Sec. 34. AS 46.40.150 is amended to read: 11 Sec. 46.40.150. Elections in coastal resource service areas. Elections 12 [ORGANIZATION ELECTIONS] under AS 46.40.110 - 46.40.180 [AS 46.40.130 13 AND OTHER ELECTIONS, INCLUDING RECALL ELECTIONS CONDUCTED 14 UNDER AS 46.40.140,] shall be administered by the lieutenant governor in the 15 general manner provided in AS 15 (Election Code). In addition, the lieutenant 16 governor may adopt regulations necessary to the conduct of coastal resource service 17 area board elections. The state shall pay all election costs. 18 * Sec. 35. AS 46.40.180(a) is amended to read: 19 (a) Before adoption by a coastal resource service area board, [OR BY THE 20 DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT UNDER 21 AS 46.40.170,] a district coastal management plan [PROGRAM] shall be submitted 22 for review to each city or village within the coastal resource service area. The council 23 of a city or traditional village council shall consider the plan [PROGRAM] submitted 24 for review. Within 60 days of submission, the council of a city or traditional village 25 council shall either approve the plan [PROGRAM] or enter objections to all or any 26 portion of the plan [PROGRAM]. 27 * Sec. 36. AS 46.40.180(b) is amended to read: 28 (b) If a city or village within a coastal resource service area fails to approve a 29 portion of the district coastal management plan [PROGRAM] prepared and submitted 30 for approval under (a) of this section, the governing body shall advise the coastal 31 resource service area board [OR THE DEPARTMENT, AS APPLICABLE,] of its
01 objections to the proposed plan [PROGRAM] and suggest alternative elements or 02 components for inclusion in the district coastal management plan [PROGRAM]. New 03 matter submitted by a city or village that meets [WHICH IS SUBSTANTIALLY 04 CONSISTENT WITH] the statewide [GUIDELINES AND] standards and district 05 plan criteria adopted under this chapter [BY THE COUNCIL] shall be accepted 06 and the district coastal management plan [PROGRAM] modified accordingly. If a 07 city or village fails to provide objections and suggested alternatives within the time 08 limits established in this section, the coastal resource service area board [OR THE 09 DEPARTMENT, AS APPLICABLE,] may adopt the district coastal management 10 plan [PROGRAM] as initially offered. 11 * Sec. 37. AS 46.40.180(c) is amended to read: 12 (c) Objection by a city council under (b) of this section is limited to objection 13 to elements of the plan [PROGRAM] affecting resources or the use of resources 14 within the corporate limits of the city. Objection by a traditional village council under 15 (b) of this section is limited to objection to elements of the plan [PROGRAM] 16 affecting resources or the use of resources within the village or within two miles of the 17 village. 18 * Sec. 38. AS 46.40 is amended by adding a new section to read: 19 Sec. 46.40.195. Construction with other laws. Nothing in this chapter shall 20 be construed to 21 (1) diminish state jurisdiction, responsibility, or rights in the field of 22 planning, development, or control of land or water resources, submerged land, or 23 navigable water; 24 (2) affect in any way any state requirement imposed under a federal 25 authorization or federal waiver of sovereign immunity; or 26 (3) diminish the zoning or planning authority of municipalities under 27 AS 29. 28 * Sec. 39. AS 46.40.210(2) is amended to read: 29 (2) "coastal resource district" means each of the following that 30 contains a portion of the coastal area of the state: 31 (A) unified municipalities;
01 (B) organized boroughs of any class that exercise planning and 02 zoning authority; 03 (C) home rule and first class cities of the unorganized borough 04 or within boroughs that do not exercise planning and zoning authority; 05 (D) second class cities of the unorganized borough, or within 06 boroughs that do not exercise planning and zoning authority, that have 07 established a planning commission, and that, in the opinion of the 08 commissioner of community and economic development, have the capability 09 of preparing and implementing a comprehensive district coastal management 10 plan [PROGRAM] under AS 46.40.030; 11 (E) coastal resource service areas established and organized 12 under AS 29.03.020 and AS 46.40.110 - 46.40.180; 13 * Sec. 40. AS 46.40.210(3) is amended to read: 14 (3) "consistency review" means the evaluation of a proposed project, 15 the scope of which is determined under AS 46.40.094 and 46.40.096, against the 16 statewide standards adopted [BY THE COUNCIL] under AS 46.40.040 for those 17 evaluations and the enforceable policies in an applicable [A] district coastal 18 management plan [PROGRAM] approved [BY THE COUNCIL] under 19 AS 46.40.060; 20 * Sec. 41. AS 46.40.210(5) is amended to read: 21 (5) "department" means the Department of Natural Resources 22 [COMMUNITY AND ECONOMIC DEVELOPMENT]; 23 * Sec. 42. AS 46.40.210(8) is amended to read: 24 (8) "uses of state concern" means those land and water uses that 25 [WHICH] would significantly affect the long-term public interest; "uses of state 26 concern" [THESE USES, SUBJECT TO COUNCIL DEFINITION OF THEIR 27 EXTENT,] include 28 (A) uses of national interest, including the use of resources for 29 the siting of ports and major facilities that [WHICH] contribute to meeting 30 national energy needs, construction and maintenance of navigational facilities 31 and systems, resource development of federal land, and national defense and
01 related security facilities that are dependent upon coastal locations; 02 (B) uses of more than local concern, including those land and 03 water uses that [WHICH] confer significant environmental, social, cultural, or 04 economic benefits or burdens beyond a single coastal resource district; 05 (C) the siting of major energy facilities, activities pursuant to a 06 state or federal oil and gas lease, or large-scale industrial or commercial 07 development activities that [WHICH] are dependent on a coastal location and 08 that [WHICH], because of their magnitude or the magnitude of their effect on 09 the economy of the state or the surrounding area, are reasonably likely to 10 present issues of more than local significance; 11 (D) facilities serving statewide or interregional transportation 12 and communication needs; and 13 (E) uses in areas established as state parks or recreational areas 14 under AS 41.21 or as state game refuges, game sanctuaries, or critical habitat 15 areas under AS 16.20; 16 * Sec. 43. AS 46.40.210 is amended by adding new paragraphs to read: 17 (10) "coastal use or resource" means a land or water use or natural 18 resource of the coastal zone; "coastal use or resource" includes subsistence, recreation, 19 public access, fishing, historic or archaeological resources, geophysical resources, and 20 biological or physical resources found in the coastal zone on a regular or cyclical 21 basis; 22 (11) "coastal zone" means the coastal water including land within and 23 under that water, and adjacent shoreland, including the water within and under that 24 shoreland, within the boundaries approved by the former Alaska Coastal Policy 25 Council and by the United States Secretary of Commerce under 16 U.S.C. 1451 - 1465 26 (Coastal Zone Management Act of 1972, as amended); "coastal zone" includes areas 27 added as a result of any boundary changes approved by the department and by the 28 United States Secretary of Commerce under 16 U.S.C. 1451 - 1465; "coastal zone" 29 does not include 30 (A) those lands excluded under 16 U.S.C. 1453(1); or 31 (B) areas deleted as a result of any boundary changes by the
01 department in conformance with 16 U.S.C. 1451 - 1465; 02 (12) "district coastal management plan" means a plan developed by a 03 coastal resource district, including enforceable policies of that plan, setting out 04 policies and standards to guide public and private uses of land and water within that 05 district and approved by the department as meeting the requirements of this chapter 06 and the regulations adopted under this chapter; 07 (13) "enforceable policy" means a policy established by this chapter or 08 approved by the department as a legally binding policy of the Alaska coastal 09 management program applicable to public and private activities; 10 (14) "project" means all activities that will be part of a proposed 11 development. 12 * Sec. 44. AS 38.05.037(b)(2); AS 39.50.200(b)(38); AS 44.62.800(2)(B); AS 46.39.020, 13 46.39.050; AS 46.40.080, 46.40.120, 46.40.130, 46.40.140(c), 46.40.160, 46.40.170, 14 46.40.200, and 46.40.210(4) are repealed. 15 * Sec. 45. The uncodified law of the State of Alaska is amended by adding a new section to 16 read: 17 ANNULMENT OF CERTAIN REGULATIONS. The following regulations are 18 annulled: 19 (1) 6 AAC 80.010 - 6 AAC 80.900; 20 (2) 6 AAC 85.020 - 6 AAC 85.900. 21 * Sec. 46. The uncodified law of the State of Alaska is amended by adding a new section to 22 read: 23 TRANSITION: GENERAL PROVISIONS. (a) The Department of Natural 24 Resources shall adopt regulations under AS 44.62 (Administrative Procedure Act) 25 implementing this Act in order that the regulations are effective no later than July 1, 2004. 26 (b) Until sec. 45 of this Act takes effect or the regulations attorney removes the 27 regulations under sec. 48(c) of this Act, whichever occurs first, regulations adopted to 28 implement the Alaska coastal management program at 6 AAC 80 and 6 AAC 85 remain in 29 effect and, notwithstanding any contrary provision of this Act, the Department of Natural 30 Resources may implement and enforce the regulations. 31 (c) Notwithstanding any contrary provision of this Act, the repeal of the Alaska
01 Coastal Policy Council enacted by sec. 44 of this Act, and the repeal of the Alaska Coastal 02 Policy Council's duties in AS 46.40.040, as amended by sec. 10 of this Act, a district coastal 03 management program, including its enforceable policies, approved by the former Alaska 04 Coastal Policy Council remains in effect for purposes of AS 46.39 and AS 46.40 until July 1, 05 2006, unless the Department of Natural Resources disapproves or modifies all or part of the 06 program before July 1, 2006. 07 (d) Consistency reviews pending on the day before the effective date of secs. 17 - 22 08 of this Act and initiated under the provisions of AS 46.40.096, as that section existed before 09 the changes made by secs. 17 - 22 of this Act, may, at the applicant's option exercised no 10 more than 60 days after the effective date of secs. 17 - 22 of this Act, be continued and 11 completed under the procedures and enforceable policies under the provisions of AS 46.39 12 and AS 46.40 as they existed before the changes made by this Act. 13 (e) Except as provided in (d) of this section, contracts, rights, liabilities, and 14 obligations created by or under a law repealed by this Act remain in effect notwithstanding 15 this Act's taking effect. 16 * Sec. 47. The uncodified law of the State of Alaska is amended by adding a new section to 17 read: 18 TRANSITION AND APPLICABILITY OF CERTAIN PROVISIONS: 19 SUBMISSION OF DISTRICT PLANS BY COASTAL RESOURCE DISTRICTS FOR 20 INITIAL IMPLEMENTATION OF THIS ACT. (a) Within one year after the effective date 21 of regulations adopted by the Department of Natural Resources implementing changes to 22 AS 46.40.010 - 46.40.090, enacted by secs. 8 - 15 and 44 of this Act, or by July 1, 2005, 23 whichever is later, coastal resource districts shall review their existing district coastal 24 management program and submit to the Department of Natural Resources for review and 25 approval a revised district coastal management plan meeting the requirements of AS 46.40, as 26 amended by this Act, and the implementing regulations. 27 (b) Upon request, the Department of Natural Resources shall consult with coastal 28 resource districts to identify plan amendments that will meet the standards and guidelines 29 established under this Act. 30 (c) AS 46.40.070(b), enacted by sec. 14 of this Act, does not apply to a revised 31 district coastal management plan submitted under (a) of this section.
01 * Sec. 48. The uncodified law of the State of Alaska is amended by adding a new section to 02 read: 03 REVISOR'S INSTRUCTIONS. (a) The revisor of statutes is instructed to 04 (1) change the heading of 05 (A) AS 46.39 from "Coastal Management Administration; Alaska 06 Coastal Policy Council" to "Coastal Management Administration"; 07 (B) article 2 of AS 46.40 from "Coastal Management Programs in the 08 Unorganized Borough" to "Coastal Management Plans in the Unorganized Borough"; 09 (C) AS 46.40.180 from "Approval of programs in coastal resource 10 service areas" to "Approval of plans in coastal resource service areas"; 11 (2) delete the heading of article 2 of AS 46.39 and renumber article 3 of 12 AS 46.39 as article 2. 13 (b) Wherever in the Alaska Administrative Code the terms "Alaska Coastal Policy 14 Council" or "Coastal Policy Council" are used, or the term "council" is used to refer to the 15 Alaska Coastal Policy Council, the regulations attorney is instructed to change those terms to 16 read as "Department of Natural Resources," "DNR," "department" or "commissioner of 17 natural resources" when to do so would be consistent with AS 44.62.125(b)(6) and the 18 changes made by this Act. 19 (c) If regulations adopted by the Department of Natural Resources under sec. 46 of 20 this Act take effect before the effective date of sec. 45 of this Act, the regulations attorney is 21 instructed to remove from the Alaska Administrative Code the regulations listed in sec. 45 of 22 this Act, as being obsolete. The lieutenant governor shall notify the regulations attorney of 23 the effective date of the regulations adopted by the Department of Natural Resources under 24 sec. 46 of this Act. 25 * Sec. 49. Section 45 of this Act takes effect July 1, 2005. 26 * Sec. 50. Except as provided in sec. 49 of this Act, this Act takes effect immediately under 27 AS 01.10.070(c).