Legislature(2001 - 2002)

04/24/2002 09:16 AM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ 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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