Legislature(2001 - 2002)
04/24/2002 09:16 AM Senate FIN
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
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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