Legislature(2001 - 2002)
04/24/2002 09:16 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
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CS FOR HOUSE BILL NO. 439(RES)(title am) "An Act removing provisions providing an opportunity to petition for review of proposed or final consistency determinations under the Alaska coastal zone management program; and limiting the authority of the Alaska Coastal Policy Council to order a coastal resource district or a state agency to take action with respect to a proposed or final consistency determination." This was the first hearing for this bill in the Senate Finance Committee. REPRESENTATIVE SCOTT OGAN testified via teleconference from Anchorage to state that this legislation changes the Alaska Coastal Zone Management Program by: eliminating the petition process currently allowed during consideration of a program's consistency determination; specifying that approved resource agencies are limited to the Department of Environmental Conservation, the Department of Natural Resources, and the Department of Fish and Game; and establishing, under specified circumstances, a petition process generated from a coastal resource district by a citizen of that coastal resource district or by a state resource agency. He informed the Committee that these changes are supported by the Alaska Oil and Gas Association (AOGA); have resulted in a limited "outcry" from environmental groups; and are not opposed to by the State Administration. Senator Ward asked whether the changes in this bill would affect the proposed extension of the Tony Knowles' Coastal Trail in Anchorage. Representative Ogan responded that this legislation would not "hamper a constituent's ability" to participate in a consistency determination; however, it would "eliminate a dysfunctional petition process" which petitioners have used to delay projects. He noted that the petition process "was never used successfully by anybody to halt or change a project," but it did extend the time involved in completing a project; thereby, increasing costs. Senator Ward stated that citizens have expressed concern that certain government entities support extension of the coastal trail, and might usurp the public process. Senator Leman asked whether Representative Ogan supports an immediate effective date for this bill. Representative Ogan responded he supports an immediate effective date, as the provisions of this bill would affect pending projects. Co-Chair Kelly asked Representative Ogan to further explain the petition process identified in Section 7, subsection (h) of the Version "L" committee substitute, which, he noted, has not been adopted. Representative Ogan read from a sectional analysis memorandum dated April 23, 2002 from Kathryn Kurtz of the Division of Legal and Research Services, [copy on file] which states, "This subsection would permit a coastal resource district, a citizen of the coastal resource district, or a state resource agency to file a petition showing that a district coastal management program is not being implemented." He stressed that a petition process remains; however, it is not based on whether "they were being fairly heard, but rather on whether the program was being implemented." Senator Green moved to adopt the committee substitute for HB 439, Version 22-LS1464\L as a working draft. There being no objections, Version "L" was ADOPTED as a working draft. SENATOR GENE THERRIAULT clarified that Section 7 of this legislation specifies that if any district, citizen of that district, or permitted resource agency determines that the local plan is not being consistently followed, that party could file a petition requesting the Alaska Coastal Policy Council to "review the plan." He continued that if the Council determines that the plan is not being followed, it would instruct the project "to get back on track." He stressed that the Council could not "go back and review a project or question decisions" that had been made regarding that project. He asserted that this legislation specifies, "the Alaska Coastal Policy Council could order a coastal resource district or state resource agency to take action with respect to future implementation of the plan." Senator Therriault supported an immediate effective date for the bill, and urged the Committee to request a legal analysis to address a situation in which a petition might already have been filed or is pending as allowed under current law. Amendment #1: This conceptual amendment would establish an immediate effective date for the bill and allow for transitional language to permit petitions that are already in progress be allowed to proceed according to current law. Senator Leman moved for adoption of Amendment #1. PATRICK GALVIN, Director, Division of Governmental Coordination, Office of the Governor, remarked that the amendment "would be adequate." Senator Leman asked Mr. Galvin whether omitting the existing petition language from the amendment would create any problems. Mr. Galvin responded that although there are no petitions currently on file, there is the possibility that one could be filed. He urged the Committee to make the language in the bill "as clear as possible to avoid any legal issues;" as historically, when changes have been made to statutes governing the coastal management plan process, legal issues have surfaced. He exampled that the most recent changes to these statutes were made in 1994, and, at that time, an Alaska Superior Court judge ruled that the changes were procedural and could be applied retroactively. Senator Ward asked, if this bill were passed today with an immediate effective date, whether a "grand-fathered in" petition would have a "second appeal process currently under the law that would be affected." Mr. Galvin responded that, "there is no other administrative appeal." Senator Olson asked if regional Native councils would be adversely affected by this amendment. Mr. Galvin responded that this amendment would not affect regional Native councils. There being no objections, Amendment #1 was ADOPTED. Mr. Galvin testified that the Division of Governmental Coordination is responsible for the implementation of the Alaska Coastal Management Program. He explained that the Alaska Coastal Management Program was enacted in response to the federal Coastal Zone Management Act that allowed coastal states to develop their own coastal management plan. He informed the Committee that Alaska's decision to implement a "decentralized" Plan structure emphasizing local government control, development, and implementation, resulted in the creation of a petition process as a method to assure the federal government that the State of Alaska would be responsible for the overall implementation of the Plan. Mr. Galvin explained that, initially, implementation of the State's Plan was relegated to local governments; however, local permitting decisions resulted in "conflicting decisions about the same issue." He stated that, shortly after the State's Plan was developed, in response to this conflict, a single "consistency review process" was implemented at the State level that allowed the State to oversee project reviews requiring State or federal permits. Mr. Galvin continued that a petition process was also established to allow the Coastal Management Council to review projects to ensure the Plan was being properly implemented at the local level; however, he explained, the process expanded beyond determining whether petitioners comments were being "fairly considered" and began "questioning individual project decisions." He stated this resulted "in legal and procedural problems." Mr. Galvin stated that 1994 legislation addressed these petition process issues by establishing two petition processes: one through which the Coastal Policy Council could review whether the process "was fair to the persons commenting," but not whether the project was "a good one;" and the other to determine whether there is a "systematic failure to implement the local plan." He stated that neither petition process "has proven beneficial to anybody." Mr. Galvin stated that Section 7, subsection (h) in this legislation eliminates the problems created by the petition process wherein decisions regarding a project were questioned, but leaves intact the original intent of the petition process, which is to determine whether the Coastal Management Plan is being followed. He stressed that the legislation "retains the ability of local government" or citizens or resource agencies to ask the Council to determine "whether there is a pattern of non-implementation." Senator Austerman asked Mr. Galvin whether the Division supports this legislation. Mr. Galvin responded it does. DANA OLSON, resident of Mat-Su Coastal District, testified via teleconference from Mat Su that she would be affected by passage of this bill. She mentioned that during recent testimony on another bill, SB 361 that addresses revamping the Alaska Coastal Management Program, it was determined that additional time is needed to more thoroughly assess the Program. She opined that if the petition process allowing for the gathering of facts were removed, then determinations regarding "consistency" would be jeopardized. She stated that the State's emphasis on local control is detrimental to the overall health of such things as the State's fisheries, and water and air quality and also disregards the directives of Alaska's constitution. Ms. Olson agreed that "the petition process is broken;" however, stressed that citizens should be involved in discussions that would change the program. She voiced her opposition to this bill and urged the Committee to hold the bill until all aspects of the program have been reviewed, instead of "piece-mealing" the program. She voiced concern that copies of the committee substitute, Version "L", were not available for public review at the State's Legislative Information Offices (LIO). Senator Ward assured the testifier that the committee substitute would be distributed to the State's LIO sites. PAM LABOLLE, President, Alaska State Chamber of Commerce voiced that the State Chamber of Commerce supports this bill. She asserted that the current "petition process only added needless costs and delays to the permitting process," which is unwelcome in today's competitive global market. She stated that the petition process proposed in this legislation adequately provides for consistency determinations. Senator Leman noted that the lone opposition to this bill stemmed from concern that the Program's challenges are not being addressed in its entirety; however, he voiced the need to repair "what you can, when you can." Senator Leman moved to report the "Senate Committee Substitute for HB 439 from Committee with individual recommendations and accompanying zero fiscal notes, as amended." There being no objection, SCS CS HB 439(FIN) was REPORTED from Committee with a previous zero fiscal note from the Office of the Governor, dated February 20, 2002.
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